[Federal Register Volume 60, Number 142 (Tuesday, July 25, 1995)]
[Rules and Regulations]
[Pages 37941-37944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18252]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 165
[CGD08-94-006]
RIN 2115-AE81
Regulated Navigation Area; Mississippi River, Miles 88 to 240
Above Head of Passes
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is adopting as final, an interim final rule
published in April 1994 extending the upper limits of the Mississippi
River Regulated Navigation Area to cover the area between river miles
127 and 240, above Head of Passes, up to the Port of Baton Rouge. This
regulation is necessary to improve the safety of barge fleeting areas
that exist on the Mississippi River between New Orleans and Baton
Rouge, Louisiana, an extremely confined navigation area with a high
volume of marine traffic. The Coast Guard believes that the extension
of the Regulated Navigation Area has resulted in a decrease in the
number of barge breakaways along the lower Mississippi River between
New Orleans and Baton Rouge, Louisiana, although the lack of a high
water season earlier this spring
[[Page 37942]]
may have also contributed to this reduction.
EFFECTIVE DATE: This rule is effective on July 25, 1995.
FOR FURTHER INFORMATION CONTACT:
CDR Harvey R. Dexter, Marine Safety Division, Eighth Coast Guard
District, telephone: (504) 589-6271.
SUPPLEMENTARY INFORMATION:
Drafting Information
The drafters of this regulation are LT Jeff Novotny, project
officer for the Captain of the Port, New Orleans, Louisiana, LT Verne
Gifford, project officer, Eighth Coast Guard District Marine Safety
Division, and LT Elisa Holland, project attorney, Eighth District Legal
Office.
Regulatory History
On April 28, 1994, the Coast Guard issued an Interim Final Rule
extending the upper limits of the Mississippi River Regulated
Navigation Area, 33 CFR 165.803, to cover the area between river miles
88 and 240, above Head of Passes, up to the Port of Baton Rouge. (59 FR
21933) This rule was published as an interim rule, effective on the
date of publication. The original comment period expired on June 27,
1994. The Coast Guard received three comments during this period. In
response to requests from some commenters who wished to gather and
provide additional information prior to the issuance of the final rule,
the Coast Guard announced a public hearing and reopened the comment
period for an additional 90 days on August 12, 1994. (59 FR 41407).
Four written comments were received. A public hearing was held on
September 2, 1994. Nine persons made oral comments. Of those nine oral
commenters, four also provided their comments in written form, two
during the original comment period and two during the reopened comment
period. Based upon oral testimony and written comments, the Coast Guard
prepared this final rule. This rule is being made effective on the date
of publication. The interim final rule, effective since April 28, 1994,
has contributed to a decrease in barge breakaways. In addition, high
water conditions have recently developed and are expected to continue
throughout the summer. Therefore, the Coast Guard for good cause finds,
under 5 U.S.C. 553(d)(3), that this rule should be made effective in
less than 30 days after publication.
Background and Purpose
The regulation was published as an interim final rule in April 1994
due to barge fleet breakaways on the Mississippi River within the
Captain of the Port New Orleans zone, high water conditions and higher
than normal river stages which were expected to continue during the
summer of 1994. The interim final rule extended the then-existing
Regulated Navigation Area (mile 88 to mile 127) (hereinafter referred
to as the old RNA) to mile 240 above Head of Passes. The regulation
consisted of general procedural and equipment requirements for mooring
of barge fleets on the Mississippi River and also outlined additional
specific fleeting requirements during periods of high water.
The Regulated Navigation Area extension from mile 127 to mile 240
(hereinafter referred to as the new RNA) was deemed necessary due to
data showing that more barge fleet breakaways were occurring in the new
RNA than in the old RNA. Casualty investigations appeared to indicate
that a majority of the breakaways occurred as the result of a passing
tow or deep draft vessel striking the fleet or from large wakes
generated by passing vessels. Both of those causal factors increase
during high water conditions. Coast Guard fleet inspectors also found
that many of the fleeting operations located in the new RNA not only
did not conform with the mooring regulations in the old RNA, but also
had weak and inadequate moorings and therefore were more vulnerable to
breakaways during high water. At the public hearing held on September
2, 1994, the Coast Guard provided statistics showing barge breakaways
for the period 1990-July 1994 in both the old and new RNA's. Those
statistics supported, in part, the assertions in the interim final
rule.
Discussion of Comments and Changes
Seven written comments were received in response to the interim
final rule. Six comments contain significant criticism of the interim
final rule and the seventh comment supported the Coast Guard's decision
to extend the Regulated Navigation Area. Nine oral comments were
received at the hearing. Of those nine oral comments, four were also
provided in written form. Specific comments are discussed below.
One commenter pointed out that the regulations adopted in the
Interim Final Rule were twenty years old and suggested that the
regulatory requirements should be reviewed throughout the entire
Regulated Navigation Area due to changes in the industry. Four other
commenters also made recommendations that a comprehensive review of the
regulations was in order. The Coast Guard agrees. Changes in the barge
industry, marine traffic within the RNA, and barge handling and mooring
technology make it appropriate to conduct a comprehensive review of
these regulations. One commenter recommended the formation of a quality
action team composed of industry and Coast Guard personnel to undertake
such a review. At a future date, the Coast Guard will publish an
advance notice of proposed rulemaking to solicit public comment and
participation in comprehensive review of the rules in place throughout
the RNA. At that time, a decision will be made concerning the best
mechanism for obtaining public input and participation. However, until
such time as this review has been completed and changes, if any, are
made, the safety of persons and vessels operating within the RNA as
well as the environment require that the existing Interim Final
Regulations, as modified in this Final Rule, remain in effect.
One commenter stated that the present rule (33 CFR 165.803(d)(2))
allows for subjective determination of the condition of mooring wires
and lines and recommended that the Coast Guard work with industry to
establish guidelines to be used by Coast Guard inspectors and fleet
personnel in determining whether a line is worn or defective. One
commenter suggested that the captain of the vessel rather than the
person actually inspecting the mooring be able to initial each
inspection in the vessel log as required by 33 CFR 165.803 (h) and (i).
The Coast Guard will work with industry to arrive at some general
guidelines for determining when a line is excessively worn or defective
and will examine the possibility of having the master of the tug rather
than the person conducting the inspection as part of the comprehensive
review of these regulations referred to above. However, we feel that if
the person actually completing the inspection were to document the
inspection by initiating the log, it will engender a greater sense of
responsibility and will result in better inspection of the lines. One
commenter recommended that the Regulated Navigation Area should include
all fleets, not just those with eight or more barges, that different
regulations should be established for different size fleets, and that
the regulation should also cover dock facilities. This recommendation
will be considered as part of the comprehensive review referred to
above.
``Breakaway'' is presently defined as ``a barge that is adrift and
is not under the control of a towing vessel''. 33 CFR 165.803(a)(1).
One commenter recommended that the definition of
[[Page 37943]]
breakaway be redefined to mean a barge that is adrift and is not under
the control of or being worked by a towing vessel. It is the Coast
Guard's position that the present definition is sufficiently broad to
exclude barges that are briefly or temporarily adrift but that are
being worked by a tow boat. At the present time, the Coast Guard plans
no changes to the definition.
Three commenters recommended that the Coast Guard pursue an
aggressive role in monitoring the speed and performance of deep draft
vessels operating in the Regulated Navigation Area. The Coast Guard
does not have the resources to monitor every deep draft vessel in the
Regulated Navigation Area. The Coast Guard relies, in part, on the
skill and judgment of the master and pilot to navigate safety. However,
the Coast Guard actively investigates barge breakaway incidents
involving deep draft vessels if the vessel is clearly identified, and
encourages parties to accurately report deep draft vessels navigating
unsafely. The Coast Guard will investigate, and, if appropriate, take
action against the vessel, the vessel's master or the pilot.
Two comments questioned why the new RNA was extended to mile 240
AHP since the 190 Highway bridge in Baton Rouge at mile 234 AHP is the
northern-most point reachable by deep-draft vessel and the interim
final rule focuses on deep-draft vessels as the primary cause of barge
breakaways. This is an incorrect interpretation of the interim final
rule. While deep-draft vessels may contribute to barge breakaways, the
main concerns of the Regulated Navigation Area is barge fleeting
safety, adequacy of barge moorings, and the additional hazards posed by
high water conditions. Although deep-draft vessels cannot transit the
Mississippi River further than mile 234 AHP, barge fleeting facilities
extend above mile 234 AHP. Both the Port of Baton Rouge and the 190
Highway bridge are at or above mile 234 AHP and a barge breakaway in
the river above mile 234 AHP could cause property damage, bridge damage
or loss of life. Therefore, the Coast Guard believes the Regulated
Navigation Area should remain extended to mile 240 AHP.
Three commenters stated that it would be physically impossible to
immediately comply with the stern mooring requirement of 33 CFR
165.803(e)(1) and (2). A number of reasons were cited including high
water, availability of contractors and the Army Corps of Engineers
permitting process. Two commenters stated that installing stern
moorings would be a significant capital expense, approximately $8,000
per anchor pile. Three commenters suggested that handling additional
and, in many cases, heavier wires would increase the risk of personal
injury to crew members. In addition, two commenters stated that the
annual operating cost to the facility for maintaining stern wires and
boat time for handling stern wires would increase by approximately 10%.
For these reasons, as well as those discussed below, at the present
time, the Coast Guard will not require stern moorings in the new RNA
(mile 127 to mile 240). Stern moorings will still be required in the
old RNA (mile 88 to mile 127). Barge fleeting facilities in the old RNA
may apply for a waiver of the stern mooring requirement and the COTP,
as authorized by 33 CFR 165.803(b), may, if warranted, grant such a
waiver. Several commenters made comments which indirectly called into
question the usefulness of the stern wires in reducing the likelihood
of breakaways. The Coast Guard believes that stern wires do in fact
reduce barge breakaways, and is continuing to collect data concerning
this issue. However, this requirement will be reviewed as part of the
comprehensive review referred to above. Three commenters also requested
that enforcement of the interim final rule be postponed until the
issues raised during the comment period had been resolved. Based on the
comments above concerning the economic impact of stern wire
installation and use, the Coast Guard has exercised its enforcement
discretion and has not been actively enforcing the requirements of 33
CFR 165.803(e)(1) and (2) in the new RNA. To the best of the Coast
Guard's knowledge, no barge fleeting facility in the new RNA has
installed stern moorings.
All six commenters took issue with the provisions of 33 CFR
165.803(m)(2)(i) and (iii) and the Coast Guard's interpretation of
those provisions. Those provisions require that, during high water,
each fleet of between eight and 100 barges be attended by one radar-
equipped towboat. The towboat must be immediately operational and
within 500 yards of the barges. Those provisions have, in the past,
been interpreted to mean that the towboat must stand by and could not
perform any work in the fleet. All of the commenters stated that not
allowing the stand by tug to work would create an economic hardship.
One commenter noted that requiring a stand by boat would cost an
additional $600,000 annually. Another commenter stated the cost of a
stand by boat would be approximately $180,000 per year per additional
standby boat. Both commenters noted that it would be difficult to pass
these costs on to the customers. In addition, two commenters noted that
there are not enough towboats available. The Coast Guard believes that
the goals of promoting safety and preventing barge breakaways in the
Regulated Navigation Area can be satisfied if the towboat required by
33 CFR 165.803(m)(2)(i) and (iii) is able to work within the fleet.
This is permitted by the language of the existing regulation and no
enforcement action will be taken against operators because a boat is
being used to work the fleet.
Regulatory Evaluation
In the interim final rule, the Coast Guard asserted that the rule
was not a significant regulatory action under section 3(f) of Executive
Order 12866 and did not require an assessment of potential costs and
benefits under section 6(a)(3) of that order. The Coast Guard also
asserted that the rule was not significant under the regulatory
policies and procedures of the Department of Transportation (DOT) (44
FR 11034), February 26, 1979 and that a full Regulatory Evaluation
under paragraph 10e of the regulatory policies and procedures of the
Department of Transportation was unnecessary. The Coast Guard received
four comments addressing the issue of whether the interim final rule
was a significant regulatory action. Two comments generally stated that
the interim final rule, with its requirement of stern moorings and
additional standby boats could force barge fleeting facilities out of
business. One commenter noted that the requirement of stern moorings
would require an immediate capital investment of $400,000 plus
additional operating costs of $150,000. In addition, the commenter
noted that requiring a stand-by boat would cost an additional $600,000
annually. In short, the commenter stated, the interim final rule would
cost him $1,150,000 the first year and $750,000 each year thereafter
and would put him out of business. The commenter stated this rule would
catastrophically disrupt the inland river transportation system.
Another commenter echoed these comments, stating that these costs would
be prohibitive for most fleets. The final rule deletes the requirement
for stern moorings in the new RNA. Additionally, the standby boats
required by 33 CFR 165.803(m)(2) (i) and (iii) may perform work within
the fleet thereby reducing the economic impact of this requirement. No
other requirements contained in the Regulated Navigation
[[Page 37944]]
Area constitute a significant regulatory action under section 6(a)(3)
of Executive Order 12866. Therefore, this regulation is not a
significant regulatory action under section 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 under that order. It is not
significant under the regulatory policies and procedures of the
Department of Transportation (DOT) (44 FR 11034), February 26, 1979).
The economic impact of this rule is so minimal that a full Regulatory
Evaluation under paragraph 10e of the regulatory policies and
procedures of DOT is unnecessary.
Small Entities
The Coast Guard asserted in the interim final rule that since the
rule did not require a general notice of proposed rulemaking (as it was
published as an interim final rule as allowed by 5 U.S.C. 553(b)(B) &
(d)(3)), it was exempt from the requirements of the Regulatory
Flexibility Act (5 U.S.C. section 601 et seq.). However, the Coast
Guard did review the rule for potential impact on small entities and
took the position that the interim final rule would not have a
significant economic impact on a substantial number of small entities.
The Coast Guard invited comment from parties who felt they were a small
entity on which the rule would have significant economic impact. One
commenter took issue with the Coast Guard's assertion that notice and
public procedure prior to the effective date of the rule would be
contrary to public interest, arguing that the extension of the
regulated navigation area was not a minor or technical amendment to a
rule as contemplated by 5 U.S.C. 553(b)(3) & (d)(3). The commenter
stated that an initial and final flexibility analysis under 5 U.S.C.
603 et seq., should be done. The commenter provided information to
support the assertion that it was a small entity as defined by 15
U.S.C. 632(a). The commenter noted that the requirement of stern
moorings would require an immediate capital investment of $400,000 plus
additional operating costs of $150,000. In addition, the commenter
noted that requiring a stand-by boat would cost an additional $500,000
annually. In short, the commenter stated, the interim final rule would
cost him $1,150,000 the first year and $750,000 each year thereafter
and would put him out of business. The commenter asserted that the
interim final rule would have a significant economic impact on all of
the barge fleeting facilities in the new RNA. Another commenter took
exception to the Coast Guard's assertion that the interim final rule
would not have a significant economic impact on any small entities. The
commenter stated stern moorings would cost approximately $8,000 per
mooring plus 10% in additional operating costs annually. The cost of a
standby boat would be approximately $180,000 per year per additional
standby boat. The commenter stated the interim final rule would impose
a substantial economic impact on the barge fleets in the RNA if the
standby boats were prohibited from working within the barge fleet. As
previously noted, this final rule deletes the requirement of stern
moorings in the new RNA and the standby boats required by 33 CFR
165.803(m)(2) (i) and (iii) are able to perform work within the fleet.
Therefore, the Coast Guard certifies under section 605(b) of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this rule will
not have a significant economic impact on a substantial number of small
entities.
Collection of Information
This rule contains collection-of-information requirements. The
Coast Guard has submitted the requirements to the Office of Management
and Budget (OMB) for review under section 3504(h) of the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.), and OMB has approved them. The
section number is Sec. 165.803(i) and the corresponding OMB approval
number is OMB Control Number 2115-0092.
Federalism Assessment
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this final rule does not raise sufficient federalism concerns to
warrant the preparation of a Federalism Assessment.
Environmental Consideration
This final rule has been thoroughly reviewed by the Coast Guard,
the lead Federal agency for purposes of the National Environmental
Policy Act (NEPA). It has been determined not to have a significant
effect on the human environment or environmental conditions and to be
categorically excluded from further environmental documentation in
accordance with section 2.B.2.c. of Commandant Instruction M16475.1B.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
Final Regulation
Accordingly, the interim final rule amending 33 CFR part 165 which
was published at 59 FR 21933 on April 28, 1994, is adopted as a final
rule with the following changes:
PART 165--[AMENDED]
1. The authority citation for part 165 continues 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, and 160.5; 49 CFR 1.46.
2. In Sec. 165.803, the introductory text and paragraphs (e)(1) and
(e)(2) are revised to read as follows:
Sec. 165.803 Mississippi River--regulated navigation area.
The following is a Regulated Navigation Area--The waters of the
Mississippi River between miles 88 and 240 above Head of Passes.
* * * * *
(e) Mooring to a mooring device. (1) A barge may be moored to
mooring devices if the upstream end of that barge is secured to at
least one mooring device and the downstream end is secured to at least
one other mooring device, except that from mile 127 to mile 240 a barge
may be moored to mooring devices if the upstream end of that barge is
secured to at least one mooring device.
(2) Barges moored in tiers may be shifted to mooring devices if the
shoreward barge at the upstream end of the tier is secured to at least
one mooring device, and the shoreward barge at the downstream end of
the tier is secured to at least one other mooring device, except that
from mile 127 to mile 240 barges moored in tiers may be shifted to
mooring devices if the shoreward barge at the upstream end of the tier
is secured to at least one mooring device.
* * * * *
Dated: June 20, 1995.
C.B. Newlin,
Captain, U.S. Coast Guard Commander, 8th Coast Guard Dist., Acting.
[FR Doc. 95-18252 Filed 7-24-95; 8:45 am]
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