[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]
[Rules and Regulations]
[Pages 32323-32327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-13754]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

46 CFR Part 45

[Docket No. USCG-1998-4623]
RIN 1625-AA17


Limited Service Domestic Voyage Load Lines for River Barges on 
Lake Michigan

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending the special load line exemption 
regime for certain river barges operating on Lake Michigan, as 
established in the final rule published on November 18, 2010. 
Specifically, the weather restrictions based on Small Craft Advisory 
conditions are being replaced with the original weather restrictions 
implemented in 2002 by an interim rule.

DATES: This final rule is effective on June 15, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-1998-4623 and are available for inspection or 
copying at the 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, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. You may also find this 
docket on the Internet by going to http://www.regulations.gov, 
inserting USCG-1998-4623 in the ``Keyword'' box, and then clicking 
``Search.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Mr. Thomas Jordan, Office of Design and Engineering 
Standards, Naval Architecture Division (CG-5212), Coast Guard; 
telephone 202-372-1370, e-mail [email protected]. If you have 
questions on viewing or submitting material to the docket, call Ms. 
Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-
9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History
III. Basis and Purpose
IV. Background
V. Discussion of Comments and Changes
    A. Discussion of Public Comments
    B. Discussion of Changes
VI. Regulatory Analyses
    A. Executive Order 12866 and Executive Order 13563
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects

[[Page 32324]]

    L. Technical Standards
    M. Environment

I. Abbreviations

ABS American Bureau of Shipping
DHS Department of Homeland Security
HazMat Hazardous Material
NEPA National Environmental Policy Act of 1969
SCA Small Craft Advisory

II. Regulatory History

    On November 18, 2010, the Coast Guard published a final rule in the 
Federal Register (75 FR 70595) (2010 final rule) that finalized the 
special Lake Michigan load line regime that had been in effect under an 
interim rule since 2002. The history of this rulemaking, from the 
initial request by the Port of Milwaukee in 1991 through the publishing 
of the final rule in 2010, is recounted in the 2010 final rule.
    The 2010 final rule revised and clarified some of the interim rule 
provisions, including substitution of Small Craft Advisory (SCA) 
conditions as the limiting weather restrictions in place of a variety 
of weather conditions used under the interim rule.
    Subsequent to publishing the 2010 final rule (and before its 
effective date), we published a notice of delay in the Federal Register 
(75 FR 78928) on December 17, 2010. This notice was prompted by 
comments from some operators that the use of SCA conditions as the 
limiting weather restriction would adversely impact barge movements on 
the Burns Harbor route. To adequately review this issue, we published 
the notice of delay, which suspended the effective date of the SCA 
weather restrictions for 6 months. The notice further explained our 
rationale for using SCA conditions, opened a 30-day comment period, and 
requested public comment specifically on the issue of weather 
restrictions. During the delay period, the weather restrictions 
established in the interim rule remained in effect, but all other 
provisions in the final rule entered into effect on December 20, 2010, 
as published.
    Under 5 U.S.C. 553(d)(1), the Coast Guard is making this rule 
effective less than 30 days after publication in the Federal Register 
because the rule relieves the restriction of Small Craft Advisories as 
the limiting weather restrictions for participation in this regime.

III. Basis and Purpose

    The purpose of this current action is to amend the weather 
restrictions in 46 CFR 45.171 (Table 45.171), 45.187, and 45.191, as 
published in the 2010 final rule.
    This action is in accordance with 46 U.S.C. 5104(e), which 
authorizes the Secretary to establish load line regulations for 
specific geographic areas, taking into account weather and sea 
conditions, and availability of safe refuge (this authority has been 
delegated to the Coast Guard per DHS delegation 0170.1).

IV. Background

    This final rule narrowly pertains to the weather restrictions for 
certain dry cargo river barges operating on Lake Michigan under a 
special load line regime. Such restrictions are necessary because river 
barge hull construction is not robust enough for safe unrestricted 
operation on the Great Lakes. The regime was established under an 
interim rule in 2002, which prescribed a variety of limiting weather 
conditions based on route, wind speed and direction, wave heights, and 
ice conditions, among other factors. As we explained in the notice of 
delay, we subsequently identified SCA conditions as issued by the 
National Weather Service Nearshore Marine Forecasts for Lake Michigan 
as being an equivalent basis for weather restrictions. We believed that 
the substitution of SCA-based restrictions in the final rule would 
offer the benefit of simplifying and clarifying the weather 
restrictions without adversely affecting the level of operations or 
reducing the level of safety.
    However, several towing vessel operators expressed their concerns 
that the SCA conditions were overly restrictive compared to the 
original weather restrictions in the interim rule, and would reduce the 
number of operational days for moving barges, especially on the Burns 
Harbor route. In order to adequately review these concerns, we delayed 
the effective date of the SCA weather restrictions for 6 months and 
solicited public comments, on the issue of weather restrictions.

V. Discussion of Comments and Changes

A. Discussion of Public Comments

    The notice of delay specifically requested public comment on the 
issue of weather restrictions. In response, we received 23 comments. 
The commenters included barge or towboat operators and towboat 
captains, as well as terminal operators, marine operator associations, 
and some local businesses. All of the commenters urged reconsideration 
of the SCA limitation and/or restoration of the previous weather 
limitations under the interim rule. The comments are categorized and 
discussed below.
    Effect on towing operations: Commenters pointed out that the 
Nearshore Marine Forecasts conservatively assume that wave conditions 
are the same all across the forecast corridor (i.e., from shoreline to 
5 miles out). However, the commenters noted that even under nominal SCA 
conditions with high winds, if the wind direction is favorable (i.e., 
southerly or south-westerly on the Burns Harbor route), wave conditions 
close to shore are still benign even though higher waves develop just a 
few miles further offshore. Under such high offshore wind conditions, 
the towboat practice is to stay within approximately 1 mile of the 
shoreline, a strategy that some of the commenters referred to as 
``beachcombing.'' Two commenters specifically cited personal 
observations of wave conditions on dates when SCAs had been issued but 
nearshore conditions were calm enough for tows to safely transit. Some 
commenters pointed out the relatively short 21-mile distance between 
Calumet Harbor and Burns Harbor (approximately 3 hours transit) with 
two ports of refuge along the way, and noted that movements along that 
route can take place under favorable short-term weather conditions. The 
commenters stated that ``no sail'' restrictions under SCA conditions 
would unnecessarily prevent them from moving barges under safe 
conditions. The commenters further stated that sailing decisions are 
best made by experienced towboat captains on the water, observing 
conditions directly. They supported this position by claiming that 
making such decisions using the captain's discretion has been towboat 
practice for several decades, and that thousands of barges have been 
moved without weather-related casualties.
    The Coast Guard's governing safety issue is to ensure that wave 
conditions do not overstress river barge hulls. Small Craft Advisories 
are issued taking into consideration various factors expected during 
the forecast period, including wave heights. However, we recognize that 
wave conditions within the 5-mile-wide nearshore forecast zone can vary 
significantly depending on wind direction, and that acceptable wave 
conditions can be found closer to shore even when higher waves might be 
forecasted. We further recognize the long-term safety record of the 
towboat operators under the previous ``fair weather'' restrictions 
(that have been in effect under a previous rulemaking since 1985), and 
agree that experienced towboat captains can make safe sailing decisions 
based on actual weather

[[Page 32325]]

conditions for the duration of the voyage. For this reason, we have 
amended the weather restrictions in 46 CFR 45.171 (Table 45.171), 
45.187, and 45.191.
    Effect on other commercial operations: All commenters discussed the 
adverse impact of reduced barge movements on local marine terminals, 
warehouses, and other businesses that rely upon cargo delivered by 
river barges. The comments variously contended that SCA restrictions 
would result in delayed shipments, lost production time, and higher 
costs.
    Although the comments did not include specific figures on cost and 
production, we recognize that reduced barge movements, especially on 
the Burns Harbor route, could have an adverse impact. To the extent 
that safety is not compromised, we do not intend to unnecessarily 
restrict barge operations on the Lake. For this reason, we have amended 
the weather restrictions in 46 CFR 45.171 (Table 45.171), 45.187, and 
45.191.
    Other comments: Several comments discussed the potential shift of 
cargo movements to alternate transportation modes, such as trucks and 
railroads. The comments contended that such a shift would lead to 
increased highway traffic and higher transportation costs for shippers 
and customers, and that barge transport is environmentally friendly, as 
it produces fewer emissions per ton-mile.
    We recognize the economic and environmental efficiency of barge 
transportation of the products and materials carried under this special 
load line regime and, as stated above, we do not intend to 
unnecessarily restrict current barge operations. For this reason, we 
have amended the weather restrictions in 46 CFR 45.171 (Table 45.171), 
45.187, and 45.191.

B. Discussion of Changes

    After more than 8 years, the level of safety established by the 
weather restrictions in the interim rule has proven to be acceptable. 
Therefore, upon consideration of this record and the public comments, 
we have decided to restore the original weather limits established 
under the interim rule. Accordingly, we make the following changes to 
the final rule published in the Federal Register (75 FR 70595) on 
November 18, 2010:
    Sec.  45.171 Purpose: In paragraph (c), we revise Table 45.171 to 
restore the original weather restrictions that appeared in the interim 
rule.
    Sec.  45.187 Weather limitations: We remove all references to SCA 
conditions. In paragraph (a), we restore the original ``fair weather 
conditions'' for the Burns Harbor route. In paragraph (b), we restore 
the original reference to Table 45.171 for the Milwaukee, St. Joseph, 
and Muskegon routes. We restore paragraph (c) to the original wording 
that appeared in the interim rule.
    Sec.  45.191 Pre-departure preparations: In paragraph (a), we 
remove a reference to the SCA and restore the original wording that 
appeared in the interim rule.

VI. Regulatory Analyses

    We developed this final 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.

A. Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review. This final rule does not require an assessment of 
potential costs and benefits under section 6(a)(3) of Executive Order 
12866. The Office of Management and Budget has not reviewed it under 
these Orders.
    The purpose of this final rule is to avoid unnecessary disruptions 
to barge owners and operators by restoring the original weather 
restrictions, in 46 CFR 45.171, under which the industry has operated 
river barges on the Lake Michigan routes since 2002, as established in 
the interim rule (67 FR 19685). Based on public comments, this rule 
deletes the SCA weather restrictions in the final rule, published 
November 18, 2010. The restoration of the weather restrictions under 
the 2002 interim rule will allow owners and operators on Lake Michigan 
routes to retain the flexibility to move barges and cargo under the 
original weather criteria in Table 45.171. All other provisions of the 
published final rule are effective as of December 20, 2010.

B. 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 removal of the SCA weather restrictions will allow small 
entities the flexibility to move barges on the affected routes using 
the original weather conditions that were established by the interim 
rule in 2002. Therefore, the Coast Guard certifies under 5 U.S.C. 
605(b) that this final rule will not have a significant economic impact 
on a substantial number of small entities.

C. Assistance for Small Entities

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

D. 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). We received no 
additional information to alter the existing collection of information.

E. 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. It is well settled that States may 
not regulate in categories reserved for regulation by the Coast Guard. 
It is also well settled, now, that all of the categories covered in 46 
U.S.C. 3306, 3703, 7101, and 8101 (design, construction, alteration, 
repair, maintenance, operation, equipping, personnel qualification, and 
manning of vessels), as well as the reporting of casualties and any 
other category in which Congress intended the Coast Guard to be the 
sole source of a vessel's obligations, are within the field

[[Page 32326]]

foreclosed from regulation by the States. (See the decision of the 
Supreme Court in the consolidated cases of United States v. Locke and 
Intertanko v. Locke, 529 U.S. 89, 120 S.Ct. 1135 (March 6, 2000).)
    This final rule concerns load line assignments for vessels under 
U.S. jurisdiction. This is a category in which Congress intended the 
Coast Guard to be the sole source of a vessel's obligations. Because 
the States may not regulate within this category, preemption under 
Executive Order 13132 is not an issue.

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

G. Taking of Private Property

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

H. Civil Justice Reform

    This final 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.

I. Protection of Children

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

J. Indian Tribal Governments

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

K. Energy Effects

    We have analyzed this final 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.

L. Technical Standards

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

M. Environment

    We have analyzed this final 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 that this action is one of a category of actions that do 
not individually or cumulatively have a significant effect on the human 
environment. This final rule is categorically excluded under section 
2.B.2, figure 2-1, paragraph (34)(d) of the Instruction and under 
section 6(a) of the ``Appendix to National Environmental Policy Act: 
Coast Guard Procedures for Categorical Exclusions, Notice of Final 
Agency Policy'' (67 FR 48244, July 23, 2002). Exclusion under paragraph 
(34)(d) applies because this final rule pertains to regulations 
concerning inspection of vessels (i.e., load line requirements). 
Exclusion under 6(a) of the Federal Register Notice applies because 
this final rule pertains to regulations concerning vessel operation 
safety standards. An environmental analysis checklist and a categorical 
exclusion determination are available in the docket where indicated 
under ADDRESSES.

List of Subjects in 46 CFR Part 45

    Great Lakes, Reporting and recordkeeping requirements, Vessels.
    For the reasons discussed in the preamble, the Coast Guard amends 
46 CFR part 45, as amended in the final rule published in the Federal 
Register on November 18, 2010 (75 FR 70595), effective June 15, 2011, 
as follows:

PART 45--GREAT LAKES LOAD LINES

0
1. The authority citation for part 45 continues to read as follows:

    Authority: 46 U.S.C. 5104, 5108; Department of Homeland Security 
Delegation No. 0170.1.


0
2. In Sec.  45.171, revise Table 45.171 in paragraph (c) to read as 
follows:


Sec.  45.171  Purpose.

* * * * *
    (c) * * *

[[Page 32327]]

[GRAPHIC] [TIFF OMITTED] TR06JN11.055


0
3. Revise Sec.  45.187 to read as follows:


Sec.  45.187  Weather limitations.

    (a) Tows on the Burns Harbor route must operate during fair weather 
conditions only.
    (b) The weather limits (ice conditions, wave height, and sustained 
winds) for the Milwaukee, St. Joseph, and Muskegon routes are specified 
in Sec.  45.171, Table 45.171.
    (c) If weather conditions are expected to exceed these limits at 
any time during the voyage, the tow must not leave harbor or, if 
already underway, must proceed to the nearest appropriate harbor of 
safe refuge.

0
4. Revise Sec.  45.191(a) to read as follows:


Sec.  45.191  Pre-departure requirements.

* * * * *
    (a) Weather forecast. Determine the marine weather forecast along 
the planned route, and contact the dock operator at the destination 
port to get an update on local weather conditions.
* * * * *

    Dated: May 26, 2011.
F.J. Sturm,
Acting Director of Commercial Regulations and Standards.
[FR Doc. 2011-13754 Filed 6-3-11; 8:45 am]
BILLING CODE 9110-04-P