[Federal Register Volume 75, Number 54 (Monday, March 22, 2010)]
[Rules and Regulations]
[Pages 13433-13436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6161]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0797]
RIN 1625-AA00


Safety Zone; Invista Inc Facility Docks, Victoria Barge Canal, 
Victoria, TX

AGENCY: Coast Guard, DHS.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Coast Guard is establishing a safety zone for a partial 
blockage of the Victoria Barge Canal when the Invista Inc facility is 
offloading cargo from an oversized barge, which is approximately 380 
feet in length. Commercial traffic will be prohibited from passing the 
barge while it is offloading cargo because the navigable width of the 
channel will be substantially reduced. The safety zone is necessary to 
help ensure the safety of the maritime public during these transfer 
operations.

DATES: This interim rule is effective April 21, 2010. Comments and 
related

[[Page 13434]]

material must reach the Coast Guard on or before June 21, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0797 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand Delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this interim 
rule, call or e-mail LT Wes Geyer, Sector Corpus Christi Waterways 
Management Division, Coast Guard; telephone 361-888-3162, e-mail 
[email protected]. If you have questions on viewing or submitting 
material to the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0797), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand delivery, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2009-0797'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit comments by mail or hand delivery, submit them in 
an unbound format, no larger than 8 \1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change this rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2009-0797'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before April 21, 2010 using one of the four 
methods specified under ADDRESSES. Please explain why you believe a 
public meeting would be beneficial. If we determine that one would aid 
this rulemaking, we will hold one at a time and place announced by a 
later notice in the Federal Register.

Regulatory Information

    The Coast Guard is issuing this interim rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because any delay encountered in this 
regulation's effective date by publishing a NPRM would be contrary to 
public interest. Transfer operations involving the oversized barge at 
the Invista Inc facility are scheduled to begin in May 2010 and rapid 
establishment of the safety zone is needed to mitigate the potential 
safety hazards associated with these operations.

Background and Purpose

    The basis and purpose of this rule are to ensure safe operations 
during the hazardous condition that will be placed upon commercial 
traffic in the Victoria Barge Canal during transfer operations 
involving the oversized barge. Since the oversized barge will 
effectively take away 40 feet of the navigable channel, we believe it 
is necessary to establish a safety zone around the vessel so commercial 
traffic does not attempt to pass when the navigable channel will be 
reduced by 40 feet. We are using this interim rule to put an effective 
rule in place before commencement of transfer operations but wish to 
receive comments on it before issuing a final rule.

Discussion of Rule

    The rule places a safety zone around the barge that is offloading 
cargo at the Invista Inc facility docks for two 24-30 hour periods per 
month. The approximate location of the dock is 28[deg]39'50.5'' N 
096[deg]57'48.3'' W (approximately 1,500 feet north of Dupont Road 
which crosses the Victoria Barge Canal). The safety zone encompasses 
all waters of the canal in a zone extending 500 ft (152.2 m) east

[[Page 13435]]

and west of the Invista Inc facility docks.
    The safety zone will be enforced for two 24-30 hour periods per 
month, during transfer operations involving an oversized barge at the 
facility. During these operations, the barge will extend approximately 
40 feet into the 125-foot wide Victoria Barge Canal and will therefore 
reduce the navigable width of the channel. Use of and transit through 
the safety zone will be prohibited during these times, except with 
permission from the Captain of the Port Corpus Christi.
    In addition, the Invista Inc facility has agreed to provide seven 
days notice to neighboring facilities before the oversized barge is 
scheduled to conduct transfer operations there. Furthermore, the Coast 
Guard will issue maritime advisories widely available to users of the 
barge canal before enforcement of the safety zone.

Regulatory Analyses

    We developed this interim 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.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    This rule is not a significant regulatory action because there is 
minimal commercial and recreational vessel traffic that transits 
through this section of the Victoria Barge Canal. The rule will only be 
in effect approximately twice a month for a duration of 24-30 hours 
each time. Businesses adjacent to the Invista Inc facility (currently 
there are two) will have approximately seven days advance notice of the 
required safety zone.

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 Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule will affect the following entities, some of which may be 
small entities: The owners and operators of vessels conducting business 
at Fordyce Holdings Inc and Equalizer.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
rule will be enforced for approximately two 24-30 hour periods per 
month and the receiving facility will provide seven days notification 
to adjacent businesses on the Victoria Barge Canal. Each 24-30 hour 
period will be separated by at least a 24-hour period while the barge 
returns to Port Lavaca-Point Comfort to receive more cargo. Neighboring 
businesses and the Port of Victoria have agreed that with a seven-day 
notification they will be able to ship or receive enough cargo to 
maintain adequate feedstock supplies to operate. Vessel traffic will 
have a minimum of 24 hours between each time the safety zone would go 
into effect, which local parties have agreed would be enough time to 
ship or receive any product they may need in the interim. Before the 
enforcement period, the Coast Guard will issue broadcast notice to 
mariners (BNM) alerts to users of the barge canal, and the Captain of 
the Port may authorize entry into the zone if necessary.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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). 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.

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).

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. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This 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.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This 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.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments,

[[Page 13436]]

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.

Energy Effects

    We have analyzed this 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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this 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 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction because it establishes a safety zone. An 
environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

0
2. Add Sec.  165.837 to read as follows:


Sec.  165.836  Safety Zone; Invista Inc Facility Docks, Victoria Barge 
Canal, Victoria, Texas.

    (a) Location. The following area is a safety zone: All waters 
contained within a 500-foot (152.5m) extension east and west of the 
Invista Inc facility docks while performing offloading operations.
    (b) Enforcement Period. This rule will be enforced for periods of 
24-30 hours twice a month, from the time the oversized barge docks at 
the Invista Inc facility until the vessel departs the facility upon 
conclusion of its offloading operations. The Captain of the Port Corpus 
Christi will issue a Broadcast Notice to Mariners before beginning 
enforcement and upon ceasing enforcement of the safety zone.
    (c) Definitions. The following definition applies to this section: 
designated representative means any commissioned, warrant, and petty 
officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, and local, state, and Federal law enforcement vessels who 
have been authorized to act on the behalf of the Captain of the Port 
Corpus Christi.
    (d) Regulations. (1) Persons desiring to transit the area of the 
safety zone may contact the Captain of the Port at telephone number 1-
361-939-6393, or the barge on VHF Channel 16 (156.800MHz) to seek 
permission to transit the area. If permission is granted, all persons 
and vessels must comply with the instructions of the Captain of the 
Port or his or her designated representative.
    (2) All persons and vessels must comply with the instructions of 
the Coast Guard Captain of the Port or the designated representative.
    (3) Upon being hailed by U.S. Coast Guard patrol personnel by 
siren, radio, flashing light, or other means the operator of a vessel 
must proceed as directed.
    (4) The Coast Guard may be assisted by other Federal, State, or 
local agencies.
    (5) In accordance with the general regulations in 33 CFR part 
165.23, no person or vessel may enter or remain in the zone described 
in paragraph (a) of this section except for support vessels/aircraft 
and support personnel, or other vessels authorized by the Captain of 
the Port Corpus Christi or his designated representative.
    (e) Penalties. Vessels or persons violating this rule are subject 
to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

    Dated: November 19, 2009.
R.J. Paulison,
Captain, U.S. Coast Guard, Captain of the Port Corpus Christi.

    Editorial Note: This document was received in the Office of the 
Federal Register on March 16, 2010.

[FR Doc. 2010-6161 Filed 3-19-10; 8:45 am]
BILLING CODE 9110-04-P