[Federal Register Volume 64, Number 49 (Monday, March 15, 1999)]
[Rules and Regulations]
[Pages 12746-12749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6330]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD01-98-151]
RIN 2115-AE84
Regulated Navigation Area: Navigable Waters Within the First
Coast Guard District
AGENCY: Coast Guard, DOT.
ACTION: Interim rule with request for comments.
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SUMMARY: The Coast Guard amends the Regulated Navigation Area (RNA)
within the navigable waters of the First Coast Guard District with
respect to the provisions governing the positive control of barges. The
Interim Rule allows the Captain of the Port (COTP) to authorize
exemptions to the positive control provisions established in the Final
Rule that became effective on January 29, 1999, and also reopens the
docket for further comments on the positive control provisions and the
effect of this Interim Rule on those provisions. The Interim Rule
provides additional opportunities for small businesses affected by the
RNA both to carry on their businesses and to submit comments on the
impact of the RNA. The Interim Rule also allows the Coast Guard an
additional opportunity to analyze the impact of the RNA on small
business entities.
DATES: Effective Date: The Interim Rule is effective March 15, 1999.
Comment Date: Comments are due on or before June 14, 1999.
Publc Meeting Date: A public meeting will be held on April 16,
1999, from 10 a.m. to 2 p.m.
ADDRESSES: Public Meeting: The Coast Guard will conduct the public
meeting at the U.S. Navy/Marine Corps Reserve Center, Classroom 5, 30
Woodward Ave., New Haven, Connecticut, 06512.
Comments: You may mail or deliver comments to Commander (m), First
Coast Guard District, 408 Atlantic Avenue, Boston, MA 02210-3350. The
Commander, First Coast Guard District, maintains the public docket for
this rulemaking. Comments, and documents as indicated in this preamble,
will become part of this docket and will be available for inspection or
copying at the same address between 8 a.m. and 3 p.m., Monday through
Friday, except federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Rich Klein, c/o Commander
(m), First Coast Guard District, 408 Atlantic Avenue, Boston, MA 02210-
3350; telephone 617-223-8243.
SUPPLEMENTARY INFORMATION:
[[Page 12747]]
Request for Comments
The Coast Guard encourages interested persons to participate in the
rulemaking by submitting written data, views, or arguments. Persons
submitting comments should include their names and addresses, identify
this rulemaking (CGD01-98-151) and the specific feature of the Rule to
which each comment applies, and give a reason for each comment. Please
submit all comments and attachments in an unbound format, no larger
than 8\1/2\ by 11 inches, suitable for copying. Persons wanting
acknowledgement of receipt of comments should enclose stamped, self-
addressed postcards or envelopes. The Coast Guard will consider all
comments received during the comment period. It may change the Rule in
view of the comments.
After publication of the Final Rule, a few companies affected by
the RNA notified the Coast Guard that, while they had failed to comment
during the comment period for the RNA, they were concerned about the
impact of the new rule, as they had entered into long-term contracts
before promulgation of the new positive control operating requirements.
The Coast Guard, therefore, is particularly interested in receiving
comments about the impact of the positive control measures on small
businesses. We would like to learn more about the number of small
businesses affected by the RNA and the specific impacts of the measures
on those businesses.
Public Meeting
Persons desiring to attend the public meeting should consult the
location listed under ADDRESSES. The Coast Guard will conduct the
meeting for the purpose of receiving oral opinions and presentations on
the Interim Rule. Attendance is open to the public. Persons who are
hearing-impaired may request sign translation by contacting the person
listed under FOR FURTHER INFORMATION CONTACT at least one week before
the meeting. Persons wishing to make oral presentations should also
notify the person listed under FOR FURTHER INFORMATION CONTACT no later
than two days before the meeting. Individuals may submit written
material before, during, and after the meeting. Persons unable to
attend the public meeting should submit written comments as explained
previously under ADDRESSES and SUPPLEMENTARY INFORMATION by June 14,
1999.
Procedural Matters
The Coast Guard finds under 5 U.S.C. 553(b)(B) that there is good
cause why a Notice of Proposed Rulemaking (NPRM) is unnecessary and
contrary to the public interest in this instance. First, an NPRM on the
RNA was published, before the Final Rule; second, the late information
received about the potential impact of the RNA necessitates prompt
relief in appropriate circumstances; third, the Interim Rule includes
the opportunity for written and oral comment; and finally, the Coast
Guard will hold a public meeting.
The Coast Guard finds under 5 U.S.C. 553(d)(1) good cause for
making the Interim Rule effective immediately because the Rule provides
an opportunity to temporarily relieve a restriction on the commercial
opportunities of certain small businesses.
Regulatory History
On October 13, 1998, the Coast Guard published in the Federal
Register (63 FR 54639) an NPRM entitled ``Regulated Navigation Area:
Navigable Waters within the First Coast Guard District.'' On November
13, 1998, Congress enacted the Coast Guard Authorization Act of 1998
(Act). Section 311 of the Act required the Commandant, under authority
delegated by the Secretary of Transportation, to promulgate regulations
for the safety of towing vessels and tank barges. More specifically,
section 311(b)(1)(B) of the Act required the Coast Guard to consider
each recommendation from the report of Regional Risk Assessment Team
(RRAT), a group comprised of operators of towing vessels and tank
barges, environmental groups, state agencies, and Coast Guard
officials. After the oil spill resulting from the Tank Barge NORTH CAPE
grounding, members of the RRAT reviewed tug and barge operating
procedures in the Northeast and recommended actions to minimize safety
risks unique to the transportation of petroleum in waters of the First
Coast Guard District. On December 30, 1998, the Coast Guard published a
Final Rule, in the Federal Register (63 FR 71764), creating a Regulated
Navigation Area that addressed unique risks that were within the
District Commander's authority to regulate.
Background and Purpose
Currently, 33 CFR 1654.100(d)(1)(i) requires that, except for
certain small barges in certain confined waters, every single-hull tank
barge loaded with petroleum and operating in the navigable waters of
the First Coast Guard District either be towed by a tug equipped with
twin screws and two engines, or be escorted by a second tug. while the
positive control provision in the RNA is necessary to address the
unique hazards associated with operating single-hull tank barges with
single screw tugs in First District waters, the current rule provides
little flexibility to address, temporarily, special circumstances. The
RRAT report, in fact, recommended that the Coast Guard establish a
regulatory provision authorizing exemption in limited circumstances.
Recognizing the need for flexibility to address special circumstances
while companies make arrangements to come into compliance with the new
rules, the Interim Rule amends the RNA by revising paragraph (d)(1)(ii)
to provide a more general exemption provision.
The amended section allows COTPs to consider requests for
exemptions. Upon the operator's demonstrating equivalent measures of
safety, COTPs are authorized to grant relief that would permit the
continued use of single-screw or single-engine tugs to tow loaded,
single-hull tank barges without an escort tug, throughout the navigable
waters of the First Coast Guard District. In determining whether to
temporarily grant an exemption of the new positive control provisions,
a COTP will consider a variety of factors including, but not limited
to, the availability of on-call tug assistance, the time of transit,
the route, the weather, environmental factors, the amount and grade of
cargo, the existence and sufficiency of anchoring and retrieval
equipment on manned barges, and the construction of the tank barge, as
well as the operator's overall safety record.
Requests for exemptions shall be submitted in writing to each COTP
whose zone the barge intend to operate in with a single-screw, single-
engine tug. Requests shall be submitted in writing at least seven (7)
days before the intended voyage and shall fully explain the equivalent
measures that will ensure positive control of the barge. This exemption
of the positive control provisions of the RNA will expire after June
30, 2000. The Interim Rule is designed to give affected companies ample
time to complete their current contracts, obtain addition vessels that
comply with 165.100(d)(1)(i), and submit comments to the docket.
Regulatory Assessment
The Interim Rule is not a significant regulatory action under 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order. It
has not been reviewed by the Office of Management and Budget (OMB)
under that Order. It is not
[[Page 12748]]
significant under the regulatory policies and procedures of the
Department of Transportation (DOT) (44 FR 11040 (February 26, 1979)). A
Regulatory Assessment of the Final Rule under paragraph 10e of the
regulatory policies and procedures of DOT is available in the docket
for inspection or copying where indicated under ADDRESSES.
Summary of Benefits and Costs
The principal benefits and costs of the Final Rule are discussed at
63 FR 71769-70. Issuance of the Interim Rule does not alter that
analysis as the Rule provides a procedural mechanism for companies to
demonstrate levels of safety, equivalent to the current requirements.
As noted in SUPPLEMENTARY INFORMATION, however, the Coast Guard is
interested in obtaining comments on the application of the alternatives
in this Rule.
Small entities
Acting on the information then available, and on a lack of comments
in the docket, the Coast Guard certified in the Final Rule that the
Rule would not have a significant economic impact on a substantial
number of small entities. Since the publication of that Rule, the Coast
Guard has received several letters from businesses or their trade-
organizations explaining the impact the RNA could have on them and
asking for temporary relief. After receipt of these letters following
the effective date of the Final Rule, the Commander, First Coast Guard
District met with representatives of the governments of Rhode Island
and Massachusetts together with spokespersons for a few of these
businesses. At the meeting, the parties also asked the Coast Guard to
consider granting exemptions in limited circumstances.
Since no NPRM is being issued for this Interim Rule, regulatory
flexibility requirements do not apply. On the other hand, the purpose
of regulatory flexibility analysis is to consider, and possibly reduce,
impacts on small businesses. Recognizing that we may not have received
sufficient information in response to an earlier NPRM, we will reopen
the comment period to reassess the impacts of the positive control
provisions in light of inquiries received in response to this Interim
Rule. Further delay in alleviating the potential burden associated with
immediate implementation of the positive control provisions of the
RRAT, while issuing an NPRM and performing additional research and
analysis might, in fact, harm small businesses. Therefore, we are
applying the deferral for emergency provisions of section 4 of the
Regulatory Flexibility Act (5 U.S.C. 608). Further compliance with that
Act is deferred until additional comments have been obtained from small
businesses about the impact of the measures for positive control of
barges and about the provision for alternatives in the Interim Rule.
The Coast Guard is issuing the Interim Rule authorizing exemptions
in limited circumstances to provide an additional mechanism for
relieving restrictions on those businesses that had long-term contracts
or other constraints as of the effective date of the Final Rule. The
Interim Rule allows affected companies the opportunity to continue safe
operations and additional time to make arrangements to come into
compliance with the new rule. Protection of the environment remains of
paramount concern. The new provision, therefore, is limited in time,
and small businesses should not rely on its being extended.
Small businesses are defined by the Small Business Administration
in 13 CFR part 121 by either the number of employees or the amount of
receipts in dollars. Businesses engaged in the transportation of
freight by sea, such as petroleum barge owners, are generally
considered to be small businesses if they employ 500 people or less.
Towing and tugboat services are considered to be small businesses if
their annual receipts in dollars are $5 million or less. In addition to
obtaining further information on the effect of the RNA on small
entities operating in First District waters, answers to the following
questions from these businesses would be particularly useful:
(1) What portions of the transits affected by the positive control
measures are completed by either a towing vessel or a barge considered
to be operated by a small business?
(2) What is the financial impact on small businesses of complying
with the positive control measures?
(3) What is the ability of affected small businesses to pass along
to customers the increased costs due to the positive control measures?
Assistance for Small Entities
In accordance with section 213(a) of the Small Businesses
Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), the
Coast Guard offered to assist small entities in understanding the Final
Rule so that they could better evaluate its effects on them and
participate in the rulemaking. Commander (m), First Coast Guard
District, provided explanatory information to a number of individuals
by telephone. If you need assistance understanding either the Final or
Interim Rule, please call LT Rich Klein at 617-223-8243.
The Small Business and Agriculture Regulatory Enforcement Ombudsman
and 10 Regional Fairness Boards were established to receive comments
from small businesses about enforcement by Federal agencies. The
Ombudsmall will annually evaluate enforcement and rate each agency's
responsiveness to small business. If you wish to comment on enforcement
by the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
Collection of Information
The Interim Rule calls for no collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Federalism
The Interim Rule has been analyzed in accordance with the
principles and criteria contained in Executive Order 12612. In the
Final Rule, the Coast Guard determined that there would be some
preemptive impacts on the Rhode Island Tank Vessel Safety Act, 46
R.I.G.L. Sec. 12.6. See 63 FR 71770. For reasons discussed in that
Rule, however, the Coast Guard determined that that Rule did not have
sufficient implications federalism to warrant the preparation of a
Federalism Assessment. The Interim rule only establishes procedures
that do not alter in any meaningful way the previous Federalism
analysis.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4, 109 Stat. 48) requires Federal agencies to assess the effects
of certain regulatory actions on State, local, and tribal governments,
and the private sector. UMRA requires a written statement of economic
and regulatory alternatives for rules that contain Federal mandates. A
Federal mandate is a new or additional enforceable duty imposed on any
State, local, or tribal government, or the private sector. If any
Federal mandate causes those entities to spend, in the aggregate, $100
million or more in any one year, the UMRA analysis is required. This
Interim Rule would not impose Federal mandates on any State, local, or
tribal governments, or the private sector.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that under figure 2-1, paragraphs 34(g) and (i),
Commandant Instruction M16475.1C, this rule is categorically excluded
from further environmental documentation. A
[[Page 12749]]
``Determination of Categorical Exclusion'' is available in the docket
for inspection or copying where indicated under ADDRESSES.
The new exemption provision in the Interim Rule rests on the
premise that an equivalent level of safety exists to protect the
environment. The Coast Guard invites comments on this point.
Other Executive Orders on the Regulatory Process
In addition to the statutes and Executive Orders already addressed
in this preamble, the Coast Guard considered the following executive
orders in developing this Interim Rule and reached the following
conclusions:
E.O. 12630, Governmental Actions and Interference with
Constitutionally Protected Property Rights. This Rule will not effect a
taking of private property or otherwise have taking implications under
this Order.
E.O. 12875, Enhancing the Intergovernmental Partnership. This Rule
will not impose, on any State, local, or tribal government, a mandate
that is not required by statute and that is not funded by the Federal
government.
E.O. 12988, Civil Justice Reform. This Rule meets applicable
standards in sections 3(a) and 3(b)(2) of this Order to minimize
litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks. This Rule is not an economically significant rule and
does not concern an environmental risk to safety disproportionately
affecting children.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
PART 165--[AMENDED]
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
1. The citation of authority for part 165 is revised to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g),
6.04-1, 6.04-6, 160.5; 49 CFR 1.46. Section 165.100 is also issued
under authority of Sec. 311, Pub. L. 105-383.
2. Revise Sec. 165.100(d)(1)(iii) to read as follows:
Sec. 165.100 Regulated Navigation Area: Navigable Waters within the
First Coast Guard District.
* * * * *
(d) * * *
(1) * * *
(iii) The cognizant Captain of the Port (COTP), upon written
application, may authorize an exemption from the requirements of
paragraph (d)(1)(i) of this section for--
(A) Any tank barge with a capacity of less than 25,000 barrels,
operating in an area with limited depth or width such as a creek or
small river; or
(B) Any tank barge operating on any waters within the COTP Zone,
until July 1, 2000, provided the operator demonstrates to the
satisfaction of the COTP that the barge employs an equivalent level of
safety to that provided by the positive control provisions of this
section. Each request for an exemption under this paragraph
(d)(1)(iii)(B) must be submitted in writing to the cognizant COTP no
later than 7 days before the intended transit.
* * * * *
Dated: March 10, 1999.
R.F. Duncan,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard
District.
[FR Doc. 99-6330 Filed 3-12-99; 8:45 am]
BILLING CODE 4910-15-M
