[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