View Rule

Statement of Need: In light of recent Federal court cases and the President's May 20, 2009, memorandum regarding preemption, the Coast Guard believes that a clear agency statement of the preemptive impact of our regulations, particularly those regulations issued prior to the promulgation of E.O. 13132, can be of great benefit to State and local governments, the public, and regulated entities. Therefore, the Coast Guard intends to issue a general statement of preemption policy, coupled with specific statements of policy regarding regulations issued under the authority of statutes with preemptive effect, including, among others, the Ports and Waterways Safety Act (PWSA) of 1972, as amended (33 U.S.C. 1221 et. seq.). The Coast Guard proposes to publish these policies in a new section 1.06 of title 33 of the Code of Federal Regulations, to allow for easy access by interested persons and parties.

Summary of the Legal Basis: The statutory authorities for the Coast Guard to prescribe, change, revise, or amend these regulations are provided under 14 U.S.C. 2 and 91; 33 U.S.C. 1223, 1231, and 1903(b); 46 U.S.C. 3203, 3306, 3703, 3717, 4302, and 6101; and Department of Homeland Security Delegation No. 0170.1.

Alternatives: The Coast Guard considered alternative mechanisms for restating the preemptive effect of regulations, including the use of a notice of policy. These methods would not provide the same level of transparency as codification in the Code of Federal Regulations, however, because they would not be as readily located by State and local government or other members of the public. They also would not satisfy the President’s May 20, 2009, memorandum regarding preemption, which directs agencies to include preemption provisions in the codified regulation.

Anticipated Costs and Benefits: We expect no additional cost impacts to the industry from this proposed rule, because it only restates and clarifies the status of Federal and State law as it exists.

Risks: Not applicable to this rulemaking.