[Federal Register Volume 78, Number 131 (Tuesday, July 9, 2013)]
[Rules and Regulations]
[Pages 40963-40966]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16248]



[[Page 40963]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 177

[Docket No. USCG-2013-0216]
RIN 1625-AC01


Regulated Navigation Areas; Bars Along the Coasts of Oregon and 
Washington

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard is amending its regulations by removing the 
wave height and surface current provisions and regulated boating areas 
for bar crossing locations along the coasts of Oregon and Washington 
because they conflict with more recently promulgated wave height 
provisions and regulated boating areas for the same bar crossings. This 
amendment is necessary in order to remove confusion as to which safety 
requirements apply to recreational vessels, uninspected passenger 
vessels, small passenger vessels, and commercial fishing vessels when 
operating within the regulated navigation areas.

DATES: This interim rule is effective August 8, 2013. Comments and 
related material must reach the Docket Management Facility on or before 
September 9, 2013.

ADDRESSES: You may submit comments identified by docket number USCG-
2013-0216 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 rule, 
email or call Mr. Burt Lahn, U.S. Coast Guard Office of Navigation 
Standards (CG-NAV-3), email [email protected], telephone 202-372-
1526. If you have questions on viewing or submitting material to the 
docket, call Barbara Hairston, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting comments
    B. Viewing comments and documents
    C. Privacy Act
    D. Public meeting
II. Abbreviations
III. Regulatory History and Information
IV. Basis and Purpose
V. Discussion of the Interim Rule
VI. Regulatory Analyses
    A. Regulatory Planning and Review
    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
    L. Technical Standards
    M. Environment

I. 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.

A. Submitting comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2013-0216), 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, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an email address, or a phone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comments online, go to http://www.regulations.gov 
and insert ``USCG-2013-0216'' in the ``Search'' box. Locate this 
document in the search results, click on ``Submit a Comment,'' and 
follow the instructions to submit your comments. If you submit your 
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 them 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.

B. 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 and 
insert ``USCG-2013-0216'' in the ``Search'' box and locate this 
document in the search results. Open the docket folder and use the 
filters on the left side of the page to view public comments or other 
types of documents. If you do not have access to the internet, you may 
view the docket online by visiting 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.

C. 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).

D. Public meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the methods specified under ADDRESSES. In 
your request, 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.

II. Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
NTSB National Transportation Safety Board
RNA Regulated Navigation Area
U.S.C. United States Code
Sec.  Section

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III. Regulatory History & Information

    The bars along the coasts of Oregon and Washington are a maritime 
operating environment unique to the Pacific Northwest. The bars can and 
very often do become extremely hazardous for maritime traffic. On 
February 12, 2009, the Coast Guard published a Notice of Proposed 
Rulemaking (NPRM) in the Federal Register (74 FR 7022) that proposed to 
establish Regulated Navigation Areas (RNAs) in 33 CFR 165.1325 for bars 
along the coasts of Oregon and Washington. The proposals in the NPRM 
were designed to help ensure the safety of persons and vessels 
operating on or in the vicinity of the bars. The Coast Guard 
subsequently published a final rule in the Federal Register on November 
17, 2009 (74 FR 59098), adopting most of the NPRM's proposals.
    Certain provisions in the final rule superseded other existing 
regulatory provisions. Specifically, 33 CFR 165.1325(a) sets forth the 
specific locations for the RNAs that cover the bars along the Oregon 
and Washington coasts, and supersedes the regulated boating areas in 33 
CFR 177.08. Additionally, 33 CFR 165.1325(b)(13) defines the term 
unsafe condition to include certain wave height conditions, and 
supersedes the unsafe wave height formula and surface current 
provisions in 33 CFR 177.07(f). The purpose of this interim rule is to 
remove those superseded provisions from the CFR.
    The Coast Guard is issuing this interim rule without prior notice 
and opportunity to comment pursuant to 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 an NPRM with respect to this rule because 
that procedure would be contrary to the public interest. Failure to 
amend 33 CFR part 177 will result in confusion as to which safety 
requirements apply to recreational and small commercial vessels when 
operating in certain bar crossing locations along the coasts of Oregon 
and Washington. This rulemaking is necessary to remove the conflicting 
provisions under 33 CFR 177.07(f) and 177.08 that have been superseded 
by 33 CFR 165.1325 and to eliminate confusion regarding which 
requirements apply specific to the bars along the coasts of Oregon and 
Washington. Delaying this action in order to publish an NPRM would be 
contrary to the public interest, as further delay would perpetuate 
confusion.
    In addition, as discussed in the aforementioned 2009 NPRM, the 
Coast Guard determined that the wave height and surface current 
provisions in 33 CFR 177.07(f), and the regulated boating areas in 33 
CFR 177.08, did not provide a sufficient measure of safety for persons 
and vessels operating in those areas. In addition, multiple Coast Guard 
and National Transportation Safety Board (NTSB) casualty investigations 
indicated a need for additional regulations to mitigate the risks 
associated with the bars and to enhance the safety of the persons and 
vessels operating on and in the bars' vicinity. Thus, continuing to 
keep these regulations in effect while publishing an NPRM would also be 
contrary to the public interest in making boating operations as safe as 
possible.

IV. Basis and Purpose

    Under 46 U.S.C. 4302, the Coast Guard is authorized to establish 
regulations to promulgate minimum safety standards and procedures for 
recreational vessels. Under 46 U.S.C. 4105(a), uninspected passenger 
vessels are also subject to Chapter 43 of Title 46, U.S. Code.
    This rulemaking is necessary in order to remove the wave height and 
surface current provisions under 33 CFR 177.07(f) and the geographic 
coordinates in 33 CFR 177.08 that have been superseded by 33 CFR 
165.1325, to eliminate confusion regarding which provisions apply 
specific to the bars along the coasts of Oregon and Washington. The 
regulations in 33 CFR 165.1325 establish clear procedures for 
restricting and/or closing the bars as well as mandating additional 
safety requirements for recreational and uninspected commercial vessels 
operating on or in the vicinity of the bars, when certain conditions 
exist. The RNAs established in 33 CFR 165.1325 help to expedite bar 
restrictions and closures and include a mariner notification process 
that helps keep vessels away from hazardous bars. The RNAs also require 
the use and/or making ready of safety equipment, as well as additional 
reporting requirements when certain conditions exist, which help 
safeguard the persons and vessels that operate on or in the vicinity of 
hazardous bars.

V. Discussion of the Interim Rule

    Certain provisions of 33 CFR part 177, governing maritime traffic 
operating on and in the vicinity of the bars along the coasts of Oregon 
and Washington, provide insufficient safety measures for the persons 
and vessels that operate in those areas. As discussed in the February 
12, 2009 NPRM (74 FR 7022), multiple Coast Guard and NTSB casualty 
investigations indicated a need for additional regulations to mitigate 
the risks associated with the bars and to enhance the safety of the 
persons and vessels operating on and in the bars' vicinity. To fulfill 
this need, in 2009, the Coast Guard established the RNAs in 33 CFR 
165.1325.
    The provisions in 33 CFR 165.1325 establish an increased measure of 
safety and supersede the existing provisions in 33 CFR 177.07(f) and 
177.08. Accordingly, the Coast Guard, through this interim rule, 
removes the wave height provisions in 33 CFR 177.07(f)(1) and (2), the 
surface current provision in 33 CFR 177.07(f)(3), and the regulated 
boating areas in 33 CFR 177.08.

VI. Regulatory Analyses

    We developed this interim rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on these statutes and executive orders.

A. Regulatory Planning and Review

    Executive Orders 12866 (``Regulatory Planning and Review'') and 
13563 (``Improving Regulation and Regulatory Review'') direct agencies 
to assess the costs and benefits of available regulatory alternatives 
and, if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distributive impacts, and equity). 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. This interim rule has not been designated a 
``significant regulatory action'' under section 3(f) of Executive Order 
12866. Accordingly, the interim rule has not been reviewed by the 
Office of Management and Budget.
    The Coast Guard does not expect any economic impact as a result of 
this interim rule because the rule is only removing two criteria for 
unsafe conditions in 33 CFR part 177 that have been superseded by 33 
CFR 165.1325.

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

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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. 
This rule does not require a general notice of proposed rulemaking and, 
therefore, is exempt from the requirements of the Regulatory 
Flexibility Act. Although this rule is exempt, we have reviewed it for 
potential economic impact on small entities.
    The Coast Guard does not expect any economic impact as a result of 
this interim rule because the rule is only removing certain provisions 
of 33 CFR part 177 that have been superseded by 33 CFR 165.1325. The 
Coast Guard anticipates this interim rule will have no impacts, hence, 
no costs to the affected population, including any small entities.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule will have a 
significant economic impact on it, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why you think it qualifies and how and to what degree 
this rule would economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult Burt Lahn, U.S. Coast Guard 
Office of Navigation Standards (CG-NAV-3), email [email protected], 
telephone 202-372-1526. 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.

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).

E. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132. Our analysis is explained below.
    Under 46 U.S.C. 4306, Federal regulations promulgated under the 
authority of 46 U.S.C. 4302 preempt State law unless the State law is 
identical to a Federal regulation or a State is specifically provided 
an exemption to those regulations, or permitted to regulate marine 
safety articles carried or used to address a hazardous condition or 
circumstance unique to that State. As noted above, this interim rule 
simply removes superseded regulations regarding wave height and surface 
current provisions, and certain regulated boating areas from 33 CFR 
part 177. Additionally, there are no existing State laws that are 
identical to these Federal regulations, nor have the States been 
provided an exemption to those regulations or permitted to regulate 
marine safety articles. Therefore, the rule is consistent with the 
principles of federalism and preemption requirements in Executive Order 
13132.
    While it is well settled that States may not regulate in categories 
in which Congress intended the Coast Guard to be the sole source of a 
vessel's obligations, the Coast Guard recognizes the key role that 
State and local governments may have in making regulatory 
determinations. Additionally, for rules with implications and 
preemptive effect, Executive Order 13132 specifically directs agencies 
to consult with State and local governments during the rulemaking 
process.
    Therefore, the Coast Guard invites affected State and local 
governments and their representative national organizations to indicate 
their desire for participation and consultation in this rulemaking 
process by submitting comments to this interim rule. In accordance with 
Executive Order 13132, the Coast Guard will provide a federalism impact 
statement to document: (1) The extent of the Coast Guard's consultation 
with State and local officials who submit comments to this proposed 
rule; (2) a summary of the nature of any concerns raised by State or 
local governments and the Coast Guard's position thereon; and (3) a 
statement of the extent to which the concerns of State and local 
officials have been met. We will also report to the Office of 
Management and Budget any written communications with the States.

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. This rule will not result in such 
expenditure.

G. Taking of Private Property

    This 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 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 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.

J. Indian Tribal Governments

    This 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 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

[[Page 40966]]

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 (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.

M. 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 
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 rule is categorically excluded, under section 2.B.2, 
Figure 2-1, paragraph 34(g), of the Instruction because it involves 
regulations establishing, disestablishing, or changing RNAs. 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 177

    Marine safety.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 177 as follows:

Title 33--Navigation and Navigable Waters

PART 177--CORRECTION OF ESPECIALLY HAZARDOUS CONDITIONS

0
1. The authority citation for part 177 continues to read as follows:

    Authority: 46 U.S.C. 4302, 4311; Pub. L. 103-206, 107 Stat. 
2439.


Sec.  177.04  [Amended]

0
2. In Sec.  177.04(a), remove the text ``Sec.  177.07(g)'' and add, in 
its place, the text ``Sec.  177.07(f)''.


Sec.  177.07  [Amended]

0
3. In Sec.  177.07, remove paragraph (f) and redesignate paragraph (g) 
as new paragraph (f).


Sec.  177.08  [Removed]

0
4. Remove Sec.  177.08.


Sec.  177.09  [Redesignated as Sec.  177.08]

0
5. Redesignate Sec.  177.09 as Sec.  177.08.

    Dated: June 28, 2013.
Dana A. Goward,
Director, Marine Transportation Systems, U.S. Coast Guard.
[FR Doc. 2013-16248 Filed 7-8-13; 8:45 am]
BILLING CODE 9110-04-P