[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]



=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]

BILLING CODE 4910-14-M