Final Rule. August 29, 2013.
“The Coast Guard is revising several vessel inspection and certification regulations to align them with a statutory definition of ‘seagoing barge’ and with a statutory exemption from inspection and certification requirements for certain seagoing barges. The revisions are intended to eliminate ambiguity in existing regulations, to reduce the potential for confusion among the regulated public, and to help the Coast Guard perform its maritime safety and stewardship missions.”
“The legal basis for this final rule is 46 U.S.C. 3306, which requires the Secretary of Homeland Security to prescribe regulations for Coast Guard-inspected vessels, and Executive Order (E.O.) 12988, Civil Justice Reform, section 3(a), which obligates Federal agencies to eliminate ambiguity in existing regulations. The Secretary’s authority under 46 U.S.C. 3306 is delegated to the Coast Guard in Department of Homeland Security Delegation No. 0170.1 paragraph (92.b). The purpose of this final rule is to finalize revisions that are intended to align Coast Guard regulations with current statutory language, thereby eliminating ambiguity that could cause confusion among the regulated public. That ambiguity arose as the result of two statutory changes that affect how seagoing barges are defined and regulated.
“First, seagoing barges were once defined by law as non-self-propelled vessels of 100 gross tons and over that proceed on voyages on the high seas or ocean. In 1983, as part of a comprehensive revision of the shipping statutes in Title 46, U.S. Code, Congress provided a new definition of “seagoing barge” in 46 U.S.C. 2101(32): a non-self-propelled vessel of at least 100 gross tons making voyages beyond the statutorily defined Boundary Line.  In 1997, the Coast Guard amended 46 CFR 90.10-36 to align that section’s definition of seagoing barge. Nevertheless, two Coast Guard regulations, 46 CFR 90.05-25 and 91.01-10, continue to use the pre-1983 definition. This final rule amends both sections so that they align with 46 U.S.C. 2101(32).
Second, in 1993, Congress added 46 U.S.C. 3302(m) to exempt a seagoing barge from the general 46 U.S.C. 3301(6) requirement for such barges to be Coast Guard inspected and certificated, if the barge is ‘unmanned’and ‘does not carry’ either a ‘hazardous material as cargo’ or ‘a flammable or combustible liquid, including oil, in bulk.’ It is long-established Coast Guard policy not to require exempt seagoing barges to be inspected or certificated. However, some owners or operators of exempt barges voluntarily request inspection and certification, either unnecessarily and because they are unaware of the section 3302(m) exemption, or as a rational business decision meant to facilitate the barge’s anticipated near-term use for non-exempt service. To ensure that these voluntary requests are made with full knowledge of the exemption’s availability, this final rule aligns regulatory language with section 3302(m) in eight Coast Guard regulations: 46 CFR 90.05-25 and 91.01-10; and 46 CFR 2.01-7, 24.05-1, 30.01-5, 70.05-1, 90.05-1, and 188.05-1, all of which contain tables that summarize Coast Guard inspection and certification requirements.
“On December 14, 2011, the Coast Guard published a direct final rule (DFR) entitled “Seagoing Barges” (76 FR 77712). Following the receipt of an adverse comment on the DFR and pursuant to Coast Guard regulations, 33 CFR 1.05-55, we withdrew the DFR on April 6, 2012 (77 FR 20727). On January 9, 2013, we published a notice of proposed rulemaking (NPRM) entitled “Seagoing Barges” in the Federal Register (78 FR 2148). It was substantively identical to the DFR except insofar as it was modified to address the adverse comment. No public meeting on the NPRM was requested and none was held. All prior publications were issued under RIN 1625-AB71.
“Two persons commented on the NPRM. The first commenter requested expanding the scope of the rulemaking to include barges operating on the Great Lakes, and asked us to define what is a “manned seagoing barge.” We decline to expand the limited aim of this rulemaking, which applies only to seagoing barges, which are defined in 46 U.S.C. 2101(32) as vessels that operate beyond the Boundary Line. The Boundary Line is set at varying distances from the ocean-bound coastline of the U.S. and does not pertain to the Great Lakes. See Coast Guard regulations in 46 CFR part 7. We also decline to create a definition for a manned seagoing barge because determining when a seagoing barge is “manned” is a highly fact-specific determination made by the local Coast Guard Officer in Charge, Marine Inspection. As discussed in the NPRM’s preamble, 78 FR 2150, col. 1, that fact-specific determination depends on factors cited in 46 CFR 15.501(b): ‘the applicable laws, the regulations in [46 CFR part 15], and other factors involved, such as: Emergency situations, . . . cargo carried, . . . degree of automation, use of labor saving devices, and the organizational structure of the vessel.’
“The second commenter requested more detailed discussion in support of our proposed definition of a seagoing barge carrying flammable or combustible liquid, including oil ‘in bulk.” We are amending 46 CFR 90.05-25(a) to define ‘in bulk’’ as a quantity equivalent to at least 250 barrels (10,500 gallons). Some regulatory definition of ‘in bulk’ is needed so that barge operators know whether or not they are subject to the 46 U.S.C. 3302(m) exemption. The statute does not provide that definition. However, as we pointed out in the NPRM, 78 FR at 2150, col. 3, Coast Guard policy set the bulk threshold at 250 barrels in 1996. That same policy has been in place without public concern for almost two decades and so the regulatory definition follows current Coast Guard policy.”