[Federal Register Volume 88, Number 112 (Monday, June 12, 2023)]
[Rules and Regulations]
[Pages 37988-37992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12466]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 83
[Docket No. USCG-2022-0071]
RIN 1625-AC81
State Enforcement of Inland Navigation Rules
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is issuing this final rule to adopt the 2022
interim rule removal of an incorrect statement in the Code of Federal
Regulations about field preemption of State or local regulations
regarding inland navigation. The incorrect language was added by a 2014
final rule, and the error was subsequently discovered. By adopting the
removal of this language, this rule clarifies the ability of States to
regulate inland navigation as they have historically done. This rule
does not require States to take any action.
DATES: This final rule is effective June 12, 2023.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to www.regulations.gov, type USCG-2022-0071
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 Jeffrey Decker, Coast Guard Office of Auxiliary and
Boating Safety (CG-BSX); telephone 202-372-1507, email
Jeffrey.E.Decker@uscg.mil.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Basis and Purpose, and Regulatory History
III. Background
IV. Discussion of Comments and Changes
V. Discussion of the Rule
VI. 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
APA Administrative Procedure Act
COLREGS International Regulations for Prevention of Collisions at
Sea, 1972
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
Inland Rules Inland Navigation Rules
NAICS North American Industry Classification System
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
Sec. Section
SFRBT Sport Fish Restoration and Boating Trust
RFA Regulatory Flexibility Act
U.S.C. United States Code
II. Basis and Purpose, and Regulatory History
Section 3 of the Inland Navigational Rules Act of 1980, as amended
by section 303 of the Coast Guard and Maritime Transportation Act of
2004,\1\ ``Inland Navigation Rules Promulgation Authority,'' authorizes
the Secretary of the Department in which the Coast Guard is operating
to issue inland navigation regulations and technical annexes for all
vessels on the inland waters of the United States. The goal of such
regulations is to be as consistent as possible with the corresponding
international regulations. The Secretary delegated this authority to
the Coast Guard in Department of Homeland Security (DHS) Delegation
00170.1, Revision No. 01.3, paragraph (II)(79). The purpose of this
final rule is to correct an error in title 33 of the Code of Federal
Regulations (CFR) part 83, specifically in paragraph (a) of Sec.
83.01, about the preemptive effect of the navigation regulations upon
State or local regulation.
---------------------------------------------------------------------------
\1\ Public Law 108-293, 118 Stat. 1028, Aug. 9, 2004. Section 3
of the Inland Navigational Rules Act of 1980 is codified at 33
U.S.C. 2071.
---------------------------------------------------------------------------
On September 6, 2022, the Coast Guard published an interim rule,
making this correction effective immediately for good cause. (87 FR
54385) The interim rule also solicited public comments for 90 days.
III. Background
The Inland Navigation Rules (hereafter ``Inland Rules'') are a body
of ``special rules'' as referred to in Rule 1 of the International
Regulations for Prevention of Collisions at Sea, 1972, often referred
to as ``COLREGS'' or ``International Rules.'' The President proclaimed
the International Rules as
[[Page 37989]]
U.S. law in accordance with the International Navigational Rules Act of
1977.\2\ Congress subsequently set about harmonizing the Inland Rules
that remained in use within the United States, including the Western
Rivers Rules, Great Lakes Rules, the old Inland Rules, and parts of the
Motorboat Act of 1940. These efforts culminated in the Inland
Navigational Rules Act of 1980, which codified Rules 1 through 38,
considered the main body of the Inland Rules.\3\
---------------------------------------------------------------------------
\2\ Public Law 95-75, 91 Stat. 308 (July 27, 1977).
\3\ Public Law 96-591, 94 Stat. 3415 (Dec. 24, 1980).
---------------------------------------------------------------------------
Neither the International Navigational Rules Act of 1977 nor the
Inland Navigational Rules Act of 1980 contained express language
regarding the preemption of State law. A 2009 Sea Tow study (available
in the docket where indicated under the ADDRESSES portion of the
preamble) found that ``each State and Territory has its own version of
navigation rules recorded in different locations in State law.'' The
study further found that 37 of the 56 States and Territories had either
adopted the International Rules or Inland Rules, or enacted laws
requiring conformity with them. In April 2010, in accordance with
congressional authorization, the Coast Guard issued regulations
effectively transferring the Inland Rules from United States Code to
the Code of Federal Regulations.\4\ The 2010 rule made no specific
statements about the preemptive effect of the Inland Rules. The section
of the preamble that discussed federalism said that there were no
implications for federalism under Executive Order 13132, which
addresses preemption.
---------------------------------------------------------------------------
\4\ 75 FR 19544, April 15, 2010; 33 CFR part 83.
---------------------------------------------------------------------------
In 2012, the Coast Guard proposed routine amendments to the Inland
Rules to retain consistency with COLREGS amendments approved by the
International Maritime Organization.\5\ At that time, the Coast Guard
proposed to add a statement of preemptive effect to 33 CFR 83.01(a) in
accordance with a 2009 Presidential memorandum regarding preemption.\6\
A commenter asked the Coast Guard to clarify that the proposed
preemption language referred to field preemption rather than conflict
preemption, and in the 2014 final rule, the Coast Guard said that it
did.\7\ This erroneous statement has recently led to questions about
whether State and local governments may regulate navigation on State
waters where the Inland Rules apply. Some State agencies use State
statutes to enforce violations outside the scope of the Inland Rules.
These include prohibitions on negligent operations. Others have
continued to patrol and enforce State boating violations under State
navigation rules.
---------------------------------------------------------------------------
\5\ 77 FR 52175, August 28, 2012.
\6\ ``Presidential Memorandum Regarding Preemption,'' May 20,
2009, available at: DCPD-200900384.pdf (govinfo.gov).
\7\ 79 FR 37897, 37900, July 2, 2014.
---------------------------------------------------------------------------
Field preemption means that State and local governments may not
regulate in that field at all. This is distinct from conflict
preemption, which allows State and local governments to regulate so
long as their actions do not conflict with Federal regulations. Without
express guidance from Congress, conflict preemption is the foundation
for the relationship between the laws of the Federal government and
those of the States. See Arizona v. United States, 567 U.S. 387 (2012).
The 2014 preemption language was not viewed as a change in
authority, and State and local enforcement continued as before. In
2019, however, the Coast Guard learned that a boater had argued that
the preemption statement in 33 CFR 83.01(a) meant that State law
enforcement could not charge a violation of State navigation rules that
were within the field of the Coast Guard's Inland Rules.
The Coast Guard had informal discussions with State boating law
administrators about the meaning of the language, and, in 2021, the
National Association of State Boating Law Administrators asked the
Coast Guard to clarify the issue. The Coast Guard revisited the
preemption language and determined that the 2014 statement of field
preemption is incorrect and undermines States' efforts to enhance
navigational safety. In particular, the Coast Guard determined that
Congress is not only aware of States' broad efforts to regulate in the
area of boating safety, but also that Congress, in part, funds these
efforts through the Sport Fish Restoration and Boating Trust (SFRBT)
Fund,\8\ which is administered by the Coast Guard. The SFRBT Fund
provides funding to States to enforce State boating laws and
investigate boating accidents and fatalities, many of which are the
direct result of navigation rules violations.
---------------------------------------------------------------------------
\8\ 46 U.S.C. Ch. 131: RECREATIONAL BOATING SAFETY (house.gov),
See Section 13107: Authorization of Appropriations. Last viewed June
2022.
---------------------------------------------------------------------------
IV. Discussion of Comments
The Coast Guard received one comment on the interim rule, which
simply stated ``GOOD.'' As a result, we made no changes to the
regulatory text of the interim rule.
V. Discussion of the Rule
This rule adopts the removal of the final sentence of 33 CFR
83.01(a), which states that regulations in 33 CFR parts 83 through 90
have preemptive effect over State or local regulation within the same
field. Removing the final sentence clarifies the original statutory
language of Rule 1. This rule does not insert any other statement about
preemption. This is consistent with prior versions of the Inland Rules,
which were also silent on the subject and were historically viewed as
conflict preemptive.
Generally, under the Supremacy Clause of the U.S. Constitution,
States are precluded from regulating conduct in a certain field (that
is, field preemption applies) where a statute contains an express
preemption provision, or when Congress has determined that conduct in a
particular field must be regulated by its exclusive governance. In the
words of the U.S. Supreme Court, ``The intent to displace state law
altogether can be inferred from a framework of regulation so pervasive
. . . that Congress left no room for the States to supplement it, or
where there is a federal interest . . . so dominant that the federal
system will be assumed to preclude enforcement of state laws on the
same subject.'' Arizona, 567 U.S. at 399 (internal quotations omitted).
In the case of inland navigation, nothing in the relevant statutory
enactments by Congress has ever expressly stated or otherwise implied
that the States are preempted from regulating in the field. Rather, the
appropriate analysis is one of conflict preemption. Under conflict
preemption, State law is preempted by Federal law only when compliance
with both the State law and a Federal law is impossible, or the State
law stands as an obstacle to the accomplishment and execution of the
full purposes and objective of Congress. See Arizona, 567 U.S. 387.
State regulation in the field of inland navigation is clearly evidenced
by the longstanding existence of many State navigation laws and rules
around the country, and by Congress' demonstrated awareness of such
laws and rules and its lack of action to preempt them.
State and local marine patrols play a significant role in ensuring
safety on our waterways by enforcing navigational safety rules. State
and local marine patrols outnumber Coast Guard patrols and conduct
almost all the on-water safety enforcement interactions with the
boating public. Operator inattention, improper lookout, unsafe speed,
and other navigation rules violations, such as operating at night
without navigation
[[Page 37990]]
lights, are contributing factors in many boating accidents. The Coast
Guard fully supports the efforts of State and local marine patrols to
prevent unsafe operations in accordance with the Inland Rules. While
Congress has legislated in this area, it has not created a pervasive or
dominant framework that indicates any intent to preclude States from
regulating or enforcing their own laws and rules. Accordingly, State
and local rules are preempted only in the instances described above:
where compliance with both a State requirement and a Federal
requirement is impossible, or where the State law stands as an obstacle
to the accomplishment and execution of the full purposes and objective
of Congress.
We believe that most vessel operators, and State boating law
administrators, assigned no meaning to the 2014 preemption language.
Their ongoing operations will be unchanged by this final rule. Adopting
the removal of the incorrect language about field preemption does not
alter the obligations of the boating public. They have always been
required to comply with the Inland Rules in 33 CFR parts 83 through 90.
It also does not impose obligations on State and local government: no
State or local government is required to enact its own navigation
rules, and that does not change with removal of this language. This
final rule merely allows State and local governments to continue to
regulate local navigation in a way that is consistent with longstanding
practice.
VI. 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
Table 1--Summary of Impacts of the Final Rule
----------------------------------------------------------------------------------------------------------------
Category Summary
----------------------------------------------------------------------------------------------------------------
Applicability....................................... The final rule adopts the removal of the last sentence in
33 CFR 83.01(a), ``The regulations in this subchapter
(subchapter E, 33 CFR parts 83 through 90) have
preemptive effect over State or local regulation within
the same field.''
Affected Population................................. State and local Governments and vessel operators on the
inland waterways.
Costs............................................... No estimated costs.
Unquantified Benefits............................... Adopts the removal of incorrect regulatory language. This
removal provides regulatory clarity to State and local
governments to enforce their own regulations.
----------------------------------------------------------------------------------------------------------------
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory 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.
The Office of Management and Budget (OMB) has not designated this
rule a significant regulatory action under section 3(f) of Executive
Order 12866, as amended by Executive Order 14094. A regulatory analysis
follows.
This final rule adopts the removal of incorrect language from 33
CFR 83.01(a). This rule clarifies that State and local governments are
free to continue to regulate navigation consistent with longstanding
practice. We believe that most vessel operators, and many local
governments, were unaware of the 2014 error, and that their ongoing
operations will be unchanged by this rule. No State has changed its
Inland Rules since 2014, and our conversations with state regulators
suggest they did not understand the preemption language to alter their
enforcement ability. Based on our analysis, this rule does not impose
any new requirements or regulatory costs on vessel operators, or on
State and local governments. Many State and local governments were
already enforcing navigation safety regulations, and the boating public
has always been required to comply with the Inland Rules.
Affected Population
This rule affects all State and local navigational law enforcement
patrols whose laws or regulations were purported to have been preempted
by 33 CFR 83.01(a). Although vessel operators on the inland waterways
are a part of the affected population of this rule, they will not incur
any new regulatory costs because they were already required by Federal
law to comply with State and local navigation rules. This rule creates
legal clarity about the States' ability to enforce their own
navigational rules, which will maintain safe boating conditions for
vessel operators. This rule only confirms the States' ability to retain
and enforce navigational safety laws within the field of the Inland
Rules. We are not aware that any State altered its navigational rules
in response to the 2014 preemption statement, so we do not expect any
State will alter its navigational rules in response to the statement's
removal.
Cost Analysis of the Final Rule
This final rule will not impose any new costs on vessel operators,
or on State and local governments. State and local governments were
already enforcing State and local regulations, and the boating public
has always been required to comply with the Inland Rules. The economic
baseline is that all potentially affected vessel operators and States
are already in compliance with State and local rules, and, therefore,
will not incur any costs from this rule.
Benefits Analysis of the Final Rule
The primary benefit of the final rule is to clarify the Inland
Rules by adopting the removal of incorrect regulatory language and,
therefore, removing any potential question about whether States and
local jurisdictions can enforce navigational rules on vessel operators
who navigate the inland waterways. Without adopting this removal, the
regulatory text applied as previously written would purport to prevent
State and local marine patrols from enforcing the navigation laws or
regulations. Continued State and local enforcement of State and local
navigational safety rules is essential. Four of the top five factors in
recreational boating accidents, as reported in the 2020 Recreational
Boating Statistics (Commandant
[[Page 37991]]
Publication P16754.34),\9\ involve violations of navigation rules.
Further, this rule clarifies that field preemption was never intended
to be a valid legal defense in State enforcement proceedings.
---------------------------------------------------------------------------
\9\ Recreational-Boating-Statistics-2020.pdf
(menlosecurity.com), last viewed March 2022.
---------------------------------------------------------------------------
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 less than 50,000.
There are two affected populations for this final rule, States or
State governments and vessel operators on the inland waterways. The
North American Industry Classification System (NAICS) codes list State
governments under the classification of ``Public Administration'' with
a NAICS sector code of ``92.'' Although State governments would be
affected by this final rule, they are not considered small entities
under the Regulatory Flexibility Act (RFA) because they have
populations of 50,000 or more. Local governments and vessel operators
may be small entities under the RFA; however, this final rule does not
impose any new regulatory requirements or costs on them. As a result,
there are no small entities affected by this final rule. Our analysis
shows that this final rule will not impose any regulatory costs on
States and recreational boaters. The primary benefit of this final rule
is to clarify existing regulatory text; therefore, the Coast Guard
certifies under 5 U.S.C. 605(b) that this final 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 offer to assist small
entities in understanding this 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
This rule calls for no new or revised 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 analyzed this final rule under Executive Order 13132 and
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132. Our analysis follows.
States may not regulate in categories reserved by Congress for the
exclusive regulation by the Coast Guard. For example, 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 United States v.
Locke, 529 U.S. 89 (2000). This final rule, however, is adopting the
correction of a misstatement in the Inland Rules to clarify that the
Inland Rules are not field preemptive of State regulation of categories
touching upon navigational safety. Therefore, this rule is consistent
with the fundamental federalism principles and preemption requirements
described in Executive Order 13132.
While it is well settled that States may not regulate in categories
in which Congress intended the Coast Guard to be the sole source of a
vessel's obligations, the Coast Guard recognizes the key role that
State and local governments may have in making regulatory
determinations. Additionally, for rules with federalism implications
and preemptive effect, Executive Order 13132 specifically directs
agencies to consult with State and local governments during the
rulemaking process. If you believe this rule has implications for
federalism under Executive Order 13132, please call or email the person
listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.
F. 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 rule will not result
in such 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
[[Page 37992]]
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
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.
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 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 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
rule meets the criteria for categorical exclusions A3 and L54 in
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev 1.
Categorical exclusion A3 pertains to ``promulgation of rules of a
strictly administrative or procedural nature;'' and those that
``interpret or amend an existing regulation without changing its
environmental effect.'' Categorical exclusion L54 pertains to
regulations that are editorial or procedural. This rule is a standalone
action to delete an incorrect statement about field preemption of State
or local regulations on the topic of inland navigation, the legal
implications of which were recently recognized. This rule is not part
of a larger action, and it will not result in significant impacts to
the human environment. Removing the incorrect language will affirm the
ability of States to legally regulate inland navigation as they long
have done, well before the Inland Rules were established.
List of Subjects in 33 CFR Part 83
Navigation (water); Waterways.
Accordingly, the interim rule amending 33 CFR part 83, which was
published on September 6, 2022 (87 FR 54385), is adopted as a final
rule with the following change:
PART 83--NAVIGATION RULES
0
1. The authority citation for part 83 is revised to read as follows:
Authority: 33 U.S.C. 2071; DHS Delegation No. 00170.1, Revision
No. 01.3.
Dated: June 7, 2023.
W.R. Arguin,
Rear Admiral, U.S. Coast Guard, Assistant Commandant for Prevention
Policy.
[FR Doc. 2023-12466 Filed 6-9-23; 8:45 am]
BILLING CODE 9110-04-P