[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]
[Rules and Regulations]
[Pages 32323-32327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13754]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
46 CFR Part 45
[Docket No. USCG-1998-4623]
RIN 1625-AA17
Limited Service Domestic Voyage Load Lines for River Barges on
Lake Michigan
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is amending the special load line exemption
regime for certain river barges operating on Lake Michigan, as
established in the final rule published on November 18, 2010.
Specifically, the weather restrictions based on Small Craft Advisory
conditions are being replaced with the original weather restrictions
implemented in 2002 by an interim rule.
DATES: This final rule is effective on June 15, 2011.
ADDRESSES: Comments and material received from the public, as well as
documents mentioned in this preamble as being available in the docket,
are part of docket USCG-1998-4623 and are available for inspection or
copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this
docket on the Internet by going to http://www.regulations.gov,
inserting USCG-1998-4623 in the ``Keyword'' box, and then clicking
``Search.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Mr. Thomas Jordan, Office of Design and Engineering
Standards, Naval Architecture Division (CG-5212), Coast Guard;
telephone 202-372-1370, e-mail [email protected]. If you have
questions on viewing or submitting material to the docket, call Ms.
Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-
9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
A. Discussion of Public Comments
B. Discussion of Changes
VI. Regulatory Analyses
A. Executive Order 12866 and Executive Order 13563
B. Small Entities
C. Assistance for Small Entities
D. Collection of Information
E. Federalism
F. Unfunded Mandates Reform Act
G. Taking of Private Property
H. Civil Justice Reform
I. Protection of Children
J. Indian Tribal Governments
K. Energy Effects
[[Page 32324]]
L. Technical Standards
M. Environment
I. Abbreviations
ABS American Bureau of Shipping
DHS Department of Homeland Security
HazMat Hazardous Material
NEPA National Environmental Policy Act of 1969
SCA Small Craft Advisory
II. Regulatory History
On November 18, 2010, the Coast Guard published a final rule in the
Federal Register (75 FR 70595) (2010 final rule) that finalized the
special Lake Michigan load line regime that had been in effect under an
interim rule since 2002. The history of this rulemaking, from the
initial request by the Port of Milwaukee in 1991 through the publishing
of the final rule in 2010, is recounted in the 2010 final rule.
The 2010 final rule revised and clarified some of the interim rule
provisions, including substitution of Small Craft Advisory (SCA)
conditions as the limiting weather restrictions in place of a variety
of weather conditions used under the interim rule.
Subsequent to publishing the 2010 final rule (and before its
effective date), we published a notice of delay in the Federal Register
(75 FR 78928) on December 17, 2010. This notice was prompted by
comments from some operators that the use of SCA conditions as the
limiting weather restriction would adversely impact barge movements on
the Burns Harbor route. To adequately review this issue, we published
the notice of delay, which suspended the effective date of the SCA
weather restrictions for 6 months. The notice further explained our
rationale for using SCA conditions, opened a 30-day comment period, and
requested public comment specifically on the issue of weather
restrictions. During the delay period, the weather restrictions
established in the interim rule remained in effect, but all other
provisions in the final rule entered into effect on December 20, 2010,
as published.
Under 5 U.S.C. 553(d)(1), the Coast Guard is making this rule
effective less than 30 days after publication in the Federal Register
because the rule relieves the restriction of Small Craft Advisories as
the limiting weather restrictions for participation in this regime.
III. Basis and Purpose
The purpose of this current action is to amend the weather
restrictions in 46 CFR 45.171 (Table 45.171), 45.187, and 45.191, as
published in the 2010 final rule.
This action is in accordance with 46 U.S.C. 5104(e), which
authorizes the Secretary to establish load line regulations for
specific geographic areas, taking into account weather and sea
conditions, and availability of safe refuge (this authority has been
delegated to the Coast Guard per DHS delegation 0170.1).
IV. Background
This final rule narrowly pertains to the weather restrictions for
certain dry cargo river barges operating on Lake Michigan under a
special load line regime. Such restrictions are necessary because river
barge hull construction is not robust enough for safe unrestricted
operation on the Great Lakes. The regime was established under an
interim rule in 2002, which prescribed a variety of limiting weather
conditions based on route, wind speed and direction, wave heights, and
ice conditions, among other factors. As we explained in the notice of
delay, we subsequently identified SCA conditions as issued by the
National Weather Service Nearshore Marine Forecasts for Lake Michigan
as being an equivalent basis for weather restrictions. We believed that
the substitution of SCA-based restrictions in the final rule would
offer the benefit of simplifying and clarifying the weather
restrictions without adversely affecting the level of operations or
reducing the level of safety.
However, several towing vessel operators expressed their concerns
that the SCA conditions were overly restrictive compared to the
original weather restrictions in the interim rule, and would reduce the
number of operational days for moving barges, especially on the Burns
Harbor route. In order to adequately review these concerns, we delayed
the effective date of the SCA weather restrictions for 6 months and
solicited public comments, on the issue of weather restrictions.
V. Discussion of Comments and Changes
A. Discussion of Public Comments
The notice of delay specifically requested public comment on the
issue of weather restrictions. In response, we received 23 comments.
The commenters included barge or towboat operators and towboat
captains, as well as terminal operators, marine operator associations,
and some local businesses. All of the commenters urged reconsideration
of the SCA limitation and/or restoration of the previous weather
limitations under the interim rule. The comments are categorized and
discussed below.
Effect on towing operations: Commenters pointed out that the
Nearshore Marine Forecasts conservatively assume that wave conditions
are the same all across the forecast corridor (i.e., from shoreline to
5 miles out). However, the commenters noted that even under nominal SCA
conditions with high winds, if the wind direction is favorable (i.e.,
southerly or south-westerly on the Burns Harbor route), wave conditions
close to shore are still benign even though higher waves develop just a
few miles further offshore. Under such high offshore wind conditions,
the towboat practice is to stay within approximately 1 mile of the
shoreline, a strategy that some of the commenters referred to as
``beachcombing.'' Two commenters specifically cited personal
observations of wave conditions on dates when SCAs had been issued but
nearshore conditions were calm enough for tows to safely transit. Some
commenters pointed out the relatively short 21-mile distance between
Calumet Harbor and Burns Harbor (approximately 3 hours transit) with
two ports of refuge along the way, and noted that movements along that
route can take place under favorable short-term weather conditions. The
commenters stated that ``no sail'' restrictions under SCA conditions
would unnecessarily prevent them from moving barges under safe
conditions. The commenters further stated that sailing decisions are
best made by experienced towboat captains on the water, observing
conditions directly. They supported this position by claiming that
making such decisions using the captain's discretion has been towboat
practice for several decades, and that thousands of barges have been
moved without weather-related casualties.
The Coast Guard's governing safety issue is to ensure that wave
conditions do not overstress river barge hulls. Small Craft Advisories
are issued taking into consideration various factors expected during
the forecast period, including wave heights. However, we recognize that
wave conditions within the 5-mile-wide nearshore forecast zone can vary
significantly depending on wind direction, and that acceptable wave
conditions can be found closer to shore even when higher waves might be
forecasted. We further recognize the long-term safety record of the
towboat operators under the previous ``fair weather'' restrictions
(that have been in effect under a previous rulemaking since 1985), and
agree that experienced towboat captains can make safe sailing decisions
based on actual weather
[[Page 32325]]
conditions for the duration of the voyage. For this reason, we have
amended the weather restrictions in 46 CFR 45.171 (Table 45.171),
45.187, and 45.191.
Effect on other commercial operations: All commenters discussed the
adverse impact of reduced barge movements on local marine terminals,
warehouses, and other businesses that rely upon cargo delivered by
river barges. The comments variously contended that SCA restrictions
would result in delayed shipments, lost production time, and higher
costs.
Although the comments did not include specific figures on cost and
production, we recognize that reduced barge movements, especially on
the Burns Harbor route, could have an adverse impact. To the extent
that safety is not compromised, we do not intend to unnecessarily
restrict barge operations on the Lake. For this reason, we have amended
the weather restrictions in 46 CFR 45.171 (Table 45.171), 45.187, and
45.191.
Other comments: Several comments discussed the potential shift of
cargo movements to alternate transportation modes, such as trucks and
railroads. The comments contended that such a shift would lead to
increased highway traffic and higher transportation costs for shippers
and customers, and that barge transport is environmentally friendly, as
it produces fewer emissions per ton-mile.
We recognize the economic and environmental efficiency of barge
transportation of the products and materials carried under this special
load line regime and, as stated above, we do not intend to
unnecessarily restrict current barge operations. For this reason, we
have amended the weather restrictions in 46 CFR 45.171 (Table 45.171),
45.187, and 45.191.
B. Discussion of Changes
After more than 8 years, the level of safety established by the
weather restrictions in the interim rule has proven to be acceptable.
Therefore, upon consideration of this record and the public comments,
we have decided to restore the original weather limits established
under the interim rule. Accordingly, we make the following changes to
the final rule published in the Federal Register (75 FR 70595) on
November 18, 2010:
Sec. 45.171 Purpose: In paragraph (c), we revise Table 45.171 to
restore the original weather restrictions that appeared in the interim
rule.
Sec. 45.187 Weather limitations: We remove all references to SCA
conditions. In paragraph (a), we restore the original ``fair weather
conditions'' for the Burns Harbor route. In paragraph (b), we restore
the original reference to Table 45.171 for the Milwaukee, St. Joseph,
and Muskegon routes. We restore paragraph (c) to the original wording
that appeared in the interim rule.
Sec. 45.191 Pre-departure preparations: In paragraph (a), we
remove a reference to the SCA and restore the original wording that
appeared in the interim rule.
VI. Regulatory Analyses
We developed this final rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on 13 of these statutes or executive orders.
A. Executive Order 12866 and Executive Order 13563
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review. This final rule does not require an assessment of
potential costs and benefits under section 6(a)(3) of Executive Order
12866. The Office of Management and Budget has not reviewed it under
these Orders.
The purpose of this final rule is to avoid unnecessary disruptions
to barge owners and operators by restoring the original weather
restrictions, in 46 CFR 45.171, under which the industry has operated
river barges on the Lake Michigan routes since 2002, as established in
the interim rule (67 FR 19685). Based on public comments, this rule
deletes the SCA weather restrictions in the final rule, published
November 18, 2010. The restoration of the weather restrictions under
the 2002 interim rule will allow owners and operators on Lake Michigan
routes to retain the flexibility to move barges and cargo under the
original weather criteria in Table 45.171. All other provisions of the
published final rule are effective as of December 20, 2010.
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.
The removal of the SCA weather restrictions will allow small
entities the flexibility to move barges on the affected routes using
the original weather conditions that were established by the interim
rule in 2002. 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 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could 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 collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). We received no
additional information to alter the existing collection of information.
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. It is well settled that States may
not regulate in categories reserved for regulation by the Coast Guard.
It is also well settled, now, that all of 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
[[Page 32326]]
foreclosed from regulation by the States. (See the decision of the
Supreme Court in the consolidated cases of United States v. Locke and
Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).)
This final rule concerns load line assignments for vessels under
U.S. jurisdiction. This is a category in which Congress intended the
Coast Guard to be the sole source of a vessel's obligations. Because
the States may not regulate within this category, preemption under
Executive Order 13132 is not an issue.
F. Unfunded Mandates Reform Act
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. Though this final rule will not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
G. Taking of Private Property
This final 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 final 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 final rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This final rule is not an economically significant rule and does
not create an environmental risk to health or risk to safety that may
disproportionately affect children.
J. Indian Tribal Governments
This final rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does 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 final 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
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. The Administrator of the Office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through the
Office of Management and Budget, 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 final rule does not use technical standards. Therefore, we did
not consider the use of voluntary consensus standards.
M. Environment
We have analyzed this final rule under Department of Homeland
Security Management Directive 023-01 and Commandant Instruction
M16475.lD, which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that this action is one of a category of actions that do
not individually or cumulatively have a significant effect on the human
environment. This final rule is categorically excluded under section
2.B.2, figure 2-1, paragraph (34)(d) of the Instruction and under
section 6(a) of the ``Appendix to National Environmental Policy Act:
Coast Guard Procedures for Categorical Exclusions, Notice of Final
Agency Policy'' (67 FR 48244, July 23, 2002). Exclusion under paragraph
(34)(d) applies because this final rule pertains to regulations
concerning inspection of vessels (i.e., load line requirements).
Exclusion under 6(a) of the Federal Register Notice applies because
this final rule pertains to regulations concerning vessel operation
safety standards. An environmental analysis checklist and a categorical
exclusion determination are available in the docket where indicated
under ADDRESSES.
List of Subjects in 46 CFR Part 45
Great Lakes, Reporting and recordkeeping requirements, Vessels.
For the reasons discussed in the preamble, the Coast Guard amends
46 CFR part 45, as amended in the final rule published in the Federal
Register on November 18, 2010 (75 FR 70595), effective June 15, 2011,
as follows:
PART 45--GREAT LAKES LOAD LINES
0
1. The authority citation for part 45 continues to read as follows:
Authority: 46 U.S.C. 5104, 5108; Department of Homeland Security
Delegation No. 0170.1.
0
2. In Sec. 45.171, revise Table 45.171 in paragraph (c) to read as
follows:
Sec. 45.171 Purpose.
* * * * *
(c) * * *
[[Page 32327]]
[GRAPHIC] [TIFF OMITTED] TR06JN11.055
0
3. Revise Sec. 45.187 to read as follows:
Sec. 45.187 Weather limitations.
(a) Tows on the Burns Harbor route must operate during fair weather
conditions only.
(b) The weather limits (ice conditions, wave height, and sustained
winds) for the Milwaukee, St. Joseph, and Muskegon routes are specified
in Sec. 45.171, Table 45.171.
(c) If weather conditions are expected to exceed these limits at
any time during the voyage, the tow must not leave harbor or, if
already underway, must proceed to the nearest appropriate harbor of
safe refuge.
0
4. Revise Sec. 45.191(a) to read as follows:
Sec. 45.191 Pre-departure requirements.
* * * * *
(a) Weather forecast. Determine the marine weather forecast along
the planned route, and contact the dock operator at the destination
port to get an update on local weather conditions.
* * * * *
Dated: May 26, 2011.
F.J. Sturm,
Acting Director of Commercial Regulations and Standards.
[FR Doc. 2011-13754 Filed 6-3-11; 8:45 am]
BILLING CODE 9110-04-P