Page 26: of Marine News Magazine (February 2014)

REGULATORY COLUMNThe currently proposed towing vessel rule by the Coast Guard was published in 76 Fed. Reg. 49,976 on August 11, 2011. In the 2011 draft of the rule, the Coast Guard concluded that because the states may not regulate activities within the categories covered by the proposed rule, preemption ?is not an issue.? That statement appears to fall short of the Coast Guard?s recently announced goal of making the preemptive impact of its regulations ?more obvious.? preemption determinations. With respect to the Þ rst category Ñ selected regulations issued prior to the date on which the proposed rule be- comes Þ nal Ñ the Coast Guard addressed the preemptive effect of seven categories of regulations: (1) regulations is- sued under authority of Title I of the Ports and Waterways Safety Act (as amended); (2) regulations issued under Title II of that same Act; (3) regulations falling within the Òover- lapÓ between Titles I and II of the Act; (4) regulations is- sued under 46 U.S.C. chapter 32; (5) regulations issued un- der 46 U.S.C. chapter 33; (6) regulations issued under 46 U.S.C. ¤¤ 3717 and 6101; and (7) regulations issued under 33 U.S.C. ¤¤ 1901-1912. For each of the seven categories, the Coast Guard identiÞ ed the relevant preemption form (express, Þ eld or conß ict) and applied the preemption rule to previously issued regulations. The table below summa- rizes the proposed framework (readers should consult the actual rule to determine the preemptive effect of individual regulations falling within these categories). POSSIBLE IMPLICATIONS FOR THE COMING TOWING VESSEL INSPECTION FINAL RULEThe Coast GuardÕs new preemption assessment frame- work will also be applied to regulations promulgated by the Coast Guard after the Þ nal assessment rule is pub- lished. Most readers are no doubt aware that the Þ nal Coast Guard rule on towing vessel inspections is long overdue. Many appear to assume that, once promulgated, the Þ nal rule will preempt state regulation of towing vessels covered by the rule. Assuming the Þ nal towing vessel inspection rule adheres to the assessment framework established by the proposed rule on preemption, that assumption appears well-founded. Congress directed the Coast Guard to undertake the towing vessel inspection rulemaking in section 415 of the Coast Guard and Maritime Transportation Act of 2004. In that 2004 act, Congress amended the 46 U.S.C. ¤ 3301 list of Òvessels subject to inspectionÓ to include towing vessels (Òtowing vesselÓ is in turn deÞ ned in 46 U.S.C. ¤ 2101(4)). It also amended 46 U.S.C. ¤ 3306 (the Coast GuardÕs authority to promulgate regulations implement- ing the inspection requirements) to add: ?The Secretary may establish by regulation a safety management system ap- propriate for the characteristics, methods of operation, and nature of service of towing vessels.? The currently proposed towing vessel rule by the Coast Guard was published in 76 Fed. Reg. 49,976 on August 11, 2011. In the 2011 draft of the rule, the Coast Guard concluded that because the states may not regulate activities within the categories covered by the proposed rule, preemption ?is not an issue.? That statement appears to fall short of the Coast GuardÕs recently announced goal of making the preemptive impact of its regulations Òmore obvious.Ó Properly applied, the preemption assessment framework set out in the December 27 rule strongly suggests that any regulations promulgated by the Coast Guard under author- SELECTED STATUTES SUBJECTPREEMPTION FORMPWSA Title IVessel Operations Conß ict Preemption PWSA Title IITank Vessel Design, Construction, Equipment, Repair, Manning, Crew QualiÞ cations and Operations Field Preemption PWSA Titles I/II Overlap RulesMixed Overlap Analysis46 U.S.C. ¤¤ 3201-3205Vessel Safety Management Field Preemption 46 U.S.C. ¤¤ 3301-3318Inspected Vessels Field Preemption 46 U.S.C. ¤¤ 3717 & 6101Marine Safety Information and Casualty ReportingField Preemption February 2014 26 MNMN FEB14 Layout 18-31.indd 26MN FEB14 Layout 18-31.indd 261/20/2014 10:03:42 AM1/20/2014 10:03:42 AM