[Federal Register Volume 79, Number 71 (Monday, April 14, 2014)]
[Rules and Regulations]
[Pages 20797-20800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08374]


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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: Final rule.

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SUMMARY: The Coast Guard finalizes regulations previously published as 
an interim rule on July 9, 2013. In this final rule, the Coast Guard 
removes 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 final rule is effective May 14, 2014.

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-2013-0216 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-2013-0216 in the ``Keyword'' box, and then clicking 
``Search.''

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 Cheryl Collins, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Abbreviations
II. Regulatory History and Information
III. Basis and Purpose
IV. Discussion of the Final Rule
V. Discussion of Comments on 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. 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

II. Regulatory History and Information

    The bars along the coasts of Oregon and Washington are a maritime 
operating environment unique to the Pacific Northwest. Bars are 
commonly defined as areas of shallow water that lead into rivers and 
bays. At times, bars become extremely hazardous for vessels to navigate 
due to strong currents and large waves that can form when strong ocean 
currents pass over the bars. Until 2009, the bars along the coast of 
Oregon and Washington were regulated in 33 CFR Part 177. 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. RNAs are areas of water within a 
defined boundary that, for reasons of safety or environmental concerns, 
the Coast Guard has implemented regulations on the operation of vessels 
permitted inside the defined area. 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 that 2009 final rule superseded other 
provisions in Part 177 that governed bar crossing along the coasts of 
Oregon and Washington. 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

[[Page 20798]]

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 
final rule is to remove those superseded provisions from the CFR.
    As discussed in the 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) accident 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.
    Because the 2009 amendments to 33 CFR 1625.1325(a) and 
1625.1325(b)(13) superceded the provisions in 33 CFR 177.07(f) and 
177.08 specific to the wave height and surface current provisions and 
regulated boating areas for bar crossing locations along the coasts of 
Oregon and Washington, the Coast Guard, on July 9, 2013, issued an 
Interim Rule with request for comments (78 FR 40963) for the purpose of 
removing the superseded provisions in 33 CFR 177.07(f) and 177.08. In 
that Interim Rule, we explained that it was necessary to remove the 
wave height and surface current provisions contained in 33 CFR 
177.07(f) and 177.08 specific to bar crossings along the coasts of 
Oregon and Washington because they conflict with the more recently 
promulgated regulations in 33 CFR 1625.1325. This rule finalizes the 
2013 interim rule with no changes.

III. 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 
specifically 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.

IV. Discussion of the Final 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 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.

V. Discussion of the Comments on the Interim Rule

    The Coast Guard received one comment on the interim rule. The 
commenter stated that the interim rule does not explain what specific 
changes are being made or how they are more protective than the 
existing regulations, and requested a table showing the difference 
between the existing regulations and the new language. Such a table, 
the commenter suggests, would make this rulemaking action more useful 
and would also increase the transparency of the Coast Guard's actions.
    The Coast Guard reviewed the published interim rule. We do not 
agree that the interim rule fails to explain the specific changes 
effectuated by the rule. In the interim rule, the Coast Guard explained 
that the wave height and surface current restrictions in 33 CFR 
177.07(f) and the geographic coordinates in 33 CFR 177.08 were in 
conflict with, and had been superseded by, the more recently 
promulgated regulations in 33 CFR 165.1325 (promulgated in a final rule 
in 2009, 74 FR 59098, after notice and comment on the proposed rule, 74 
FR 7022). The Coast Guard further explained that the rulemaking is 
necessary in order to remove the provisions in 33 CFR 177.07(f) and 
177.08 that conflict with 33 CFR 165.1325, and thereby remove confusion 
regarding which provisions apply specifically to the bars along the 
coasts of Oregon and Washington. Further, it is worth emphasizing that 
this rulemaking is not adding new regulatory provisions. For these 
reasons, we do not believe adding a table is necessary in order to 
understand the effect of this rule, nor would it add clarity to the 
public on the removal of the provisions in 33 CFR 177.07(f) and 177.08 
that conflict with 33 CFR 165.1325.

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 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 final 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.
    The Coast Guard does not expect any economic impact as a result of 
this rule because it involves removing two criteria for unsafe 
conditions in 33 CFR part 177 that have been superseded by 33 CFR 
165.1325.

[[Page 20799]]

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. 
This rulemaking, which finalizes a lawfully promulgated interim rule, 
does not require a general notice of proposed rulemaking and, 
therefore, is exempt from the analysis requirements of the Regulatory 
Flexibility Act (5 U.S.C. 604).

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 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.

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 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 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 (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.

[[Page 20800]]

List of Subjects in 33 CFR Part 177

    Marine safety.

Title 33--Navigation and Navigable Waters

PART 177--CORRECTION OF ESPECIALLY HAZARDOUS CONDITIONS

    For the reasons discussed in the preamble, under authority of 46 
U.S.C. 4302, 4311; Pub. L. 103-206, 107 Stat. 2439, the interim rule 
amending 33 CFR part 177 that was published at 78 FR 40963 on July 9, 
2013, is adopted as a final rule without change.

    Dated: March 27, 2014.
Gary C. Rasicot,
Director of Marine Transportation Systems, U.S. Coast Guard.
[FR Doc. 2014-08374 Filed 4-11-14; 8:45 am]
BILLING CODE 9110-04-P