[Federal Register Volume 80, Number 245 (Tuesday, December 22, 2015)]
[Rules and Regulations]
[Pages 79477-79480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32135]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0760]
RIN 1625-AA11


Regulated Navigation Area; Reporting Requirements for Barges 
Loaded With Certain Dangerous Cargoes, Inland Rivers, Eighth Coast 
Guard District; Expiration of Stay (Suspension) and Administrative 
Changes

AGENCY: Coast Guard, DHS.

ACTION: Interim rule; request for comments.

-----------------------------------------------------------------------

SUMMARY: Through this interim rule, the Coast Guard is providing 
administrative changes to the existing reporting requirements under the 
Regulated Navigation Area (RNA) applicable to barges loaded with 
certain dangerous cargoes on the inland rivers in the Eighth District 
area of responsibility. The current stay of reporting requirements 
under the RNA is scheduled to expire on December 31, 2015. This interim 
rule limits the reporting requirements in that rule for an interim 
period while also requesting comments before proposing or finalizing 
any long term or permanent revisions to the existing reporting 
requirements.

DATES: This interim rule is effective beginning January 1, 2016. 
Comments and related material must be received by the Coast Guard on or 
before June 20, 2016. See SUPPLEMENTARY INFORMATION for details on 
enforcement and compliance.

ADDRESSES: The docket for this interim rule and request for comments, 
[USCG-2013-0760] is available at http://www.regulations.gov. You may 
submit comments identified by docket number USCG-2013-0760 using the 
Federal eRulemaking Portal at http://www.regulations.gov. See the 
``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section for further instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: For information about this document 
email the Coast Guard via Shelley R. Miller at 
[email protected] or Captain Paul E. Dittman at 
[email protected] or call the Coast Guard at 504-671-2330.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CDC Certain Dangerous Cargo
CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
IRVMC Inland River Vessel Movement Center
NOI Notice of intent
NPRM Notice of proposed rulemaking
Pub. L. Public Law
RNA Regulated navigation area
U.S.C. United States Code

II. Background Information and Regulatory History

    The reporting requirements under 33 CFR 165.830, ``Regulated 
Navigation Area; Reporting Requirements for Barges Loaded with Certain 
Dangerous Cargoes, Inland Rivers, Eighth Coast Guard District,'' were 
initially suspended (``stayed'') in January 2011 due to the expiration 
of the contract for the Inland River Vessel Movement Center (IRVMC). 
The IRVMC was the Coast Guard office responsible for collecting the 
information required by the regulated navigation area (RNA) at Sec.  
165.830. Upon expiration of the contract for the IRVMC, the Coast Guard 
was not able to receive and process reports. Therefore, the suspension 
of reporting requirements was published in the Federal Register on 
January 10, 2011 and was due to expire on January 15, 2013 (76 FR 
1360). On January 2, 2013 the Coast Guard extended the suspension 
through September 30, 2013 (78 FR 25) and on October 1, 2013 the Coast 
Guard extended the suspension once again through December 31, 2015 (78 
FR 60216).
    In January 2015 the Coast Guard published a final rule, titled 
Vessel Requirements for Notices of Arrival and Departure, and Automatic 
Identification System (80 FR 5282). This rule implemented new and 
updated Notices of Arrival (NOA) reporting requirements under 33 CFR 
160 Subpart C, providing an exemption, at 33 CFR 160.204(a)(3), for any 
vessel required to report movements, its cargo, or the cargo in barges 
it is towing under 33 CFR 165.830 after December 31, 2015. This rule, 
which was initially proposed in 2008 before the RNA reporting 
requirements were suspended, relied on the existing reporting 
requirements at 33 CFR 165.830 to support the exemption. Starting on 
January 1, 2016, a vessel would only be eligible for the exemption if 
it is required to report its movements or cargo as specified in Sec.  
160.204(a)(3).
    On November 24, 2015, the Coast Guard published a notice of intent 
(NOI) informing the public that the stay would expire on December 31, 
2015, and that reporting would resume in a limited form (80 FR 73156). 
This rule makes changes to limit the suspended reporting requirements, 
which would otherwise come into effect in full on January 1, 2016.
    Also relevant to this interim rule and request for comments is the 
portion of the January 2015 rule requiring that all vessels engaged in 
the movement of Certain Dangerous Cargos (CDC) have Class A Automatic 
Information System (AIS) beginning in March 2016, pending Office of 
Management and Budget (OMB) approval of a collection of information 
associated with that regulatory requirement. These AIS requirements 
provided under 33 CFR 164.46, if enforced, may provide an alternative 
method of reporting that could potentially satisfy the requirements 
under 33 CFR 165.830 and

[[Page 79478]]

qualify these vessels for the 33 CFR 160.204(a)(3) exemption. As 
indicated in the Federal Register publications establishing and 
extending the RNA suspension, during the suspension periods, the Coast 
Guard assessed potentially modifying the reporting required under the 
RNA and potential suitable alternative Coast Guard offices and programs 
to receive and disseminate the reported information. The new AIS 
requirement, once in full effect, will still be assessed as a potential 
alternative reporting method. At this time, the Coast Guard has 
determined that using already-established Coast Guard offices and units 
centralized at the Eighth District level to receive required reports is 
the appropriate interim solution to resume the reporting requirements 
necessary for both maritime domain awareness and to satisfy the 
exemption in 33 CFR 160.204(a)(3). This interim rule provides the 
necessary administrative changes to the existing reporting 
requirements, requiring reporting in a limited form while also 
requesting comments to better assess a potential permanent reporting 
system.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this interim rule to limit the RNA 
reporting requirements that will come into effect after December 31 
when the stay of Sec.  165.830 expires. This rule is necessary to stay 
compliance with certain provisions of the existing rule, and to make 
administrative changes replacing the references to IRVMC, which is no 
longer operational. The Coast Guard is issuing this rule under 
authority in 33 U.S.C. 1231, the same authority providing for the 
initial establishment of the RNA.
    The Coast Guard is issuing this interim rule without prior 
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 for several reasons. It is unnecessary to 
publish an NPRM because this interim rule makes only administrative 
changes to the existing RNA regulation under 33 CFR 165.830, and does 
not propose or establish new restrictions or requirements. This interim 
rule merely stays compliance with portions of an existing requirement, 
allowing select existing provisions to resume upon expiration of a stay 
in effect through December 31, 2015 and makes the administrative 
changes necessary to redirect reporting from the IRVMC to the District. 
Additionally, publishing an NPRM was impracticable because of the 
relatively short time between the publication of the NOA final rule and 
the expiration of the stay, as well as the uncertain enforcement date 
of certain provisions of the AIS portion of that rule. These 
circumstances did not allow adequate time to develop an NPRM, solicit 
and consider public comment, and develop and publish a final rule 
before the expiration of the stay. Instead, the Coast Guard is 
soliciting public comment with this interim rule while it is in effect 
and while the AIS requirement will be in effect, if that information 
collection is approved by OMB, so that the public's experience with 
this interim rule and the AIS requirement can be reflected in public 
comments.
    This interim rule is effective January 1, 2016. We forgo the 30-day 
delay in effective date, under the authority of 5 U.S.C. 553(d)(1) to 
the extent it relieves the reporting obligations that would otherwise 
come into effect upon the December 31, 2015 expiration of the stay, and 
under 5 U.S.C. 553(d)(3) because the Coast Guard finds that the 
imminent expiration of the stay constitutes good cause for forgoing the 
30-day delay of effective date. The Coast Guard published a NOI on 
November 24, 2015 informing the public that it intended to allow the 
stay suspending reporting requirements under this RNA to expire on 
December 31, 2015 as published, and that reporting would resume in a 
limited form upon such expiration. Delaying the effective date of this 
interim rule to provide a 30 day notice--in addition to the notice 
provided by the NOI--would be impracticable and contrary to public 
interest because a January 1, 2016, effective date is necessary to 
avoid submission of reports to the IRVMC which is no longer in 
operation.

IV. Discussion of the Interim Rule

    The Coast Guard's suspension of reporting requirements under 33 CFR 
165.830 will expire as scheduled, in part, on December 31, 2015. On 
January 1, 2016, reporting requirements under 33 CFR 165.830 will 
become effective in a limited form. The Coast Guard is not reinstating 
reporting, 24 hours per day, 365 days per year, at 90-plus reporting 
points under the existing RNA currently published in the CFR. Under 
revisions made by this interim rule, reporting requirements will be 
enforced only when directed by the District Commander or a designated 
representative. This rule does not change the type of information to be 
reported.
    This interim rule makes administrative changes that remove or 
revise references to the IRVMC, as it is no longer operational, and 
replace them with the new Coast Guard office, the Eighth District CDC 
Reporting Unit (D8 CDCRU), which when activated will be responsible for 
collecting reported information. The entities required to report, and 
the information required, remain the same. However, reporting is 
required only as directed by the District Commander or a designated 
representative, based on assessment of prevailing safety and security 
conditions to ensure and enhance maritime domain awareness. In effect, 
the Coast Guard is allowing existing paragraphs (d)(1)(ix), (d)(2)(iv), 
(f)(9), and (g)(4) to come into effect, with administrative changes to 
accommodate the closure of IRVMC. We will continue to use the reporting 
points listed in paragraph (e) to describe where reporting is required. 
This rule ``stays'' (suspends) compliance with the other existing 
reporting requirements.
    The District Commander or designated representative will inform 
vessel operators and fleeting facilities when and where reporting is 
required, by using established coordination and communication 
mechanisms already in place and which are used to alert these same 
vessel operators and fleeting facilities of an increase in Maritime 
Security level. These notice mechanisms include, but are not limited 
to, coordination with industry trade organizations, Notices of 
Enforcement, Marine Safety Information Bulletins, and email 
notifications.
    Reports required under this RNA may be provided via email at [email protected]. Alternative reporting contact methods, including 
telephone and fax numbers, will be provided in the notification from 
the District Commander or designated representative. Additionally, 
paragraph (h) allows for alternative methods to be submitted for 
approval by the District Commander. These are the same type of 
reporting methods listed in the current RNA at 33 CFR 165.830(d)(4), 
however there will not be a dedicated web link. The information 
required to be reported, is not changed by this interim rule.
    The Coast Guard chose to suspend, rather than remove, several 
paragraphs of the existing rule in order to evaluate their necessity 
and to retain the ability to reinstate them (using appropriate

[[Page 79479]]

administrative processes) if necessary. All public comments are 
welcome, but we specifically solicit comment on the following: The 
appropriate type and frequency of reporting related to CDC barges in 
D8; the potential to use AIS to satisfy reporting goals; and the extent 
to which complying with the AIS rule would render this rule 
unnecessary.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on a number of these statutes and E.O.s, and we discuss 
First Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 12866 and 13563 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. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, it has not been 
reviewed by the Office of Management and Budget.
    No new requirements are established or imposed by this rule. This 
interim rule suspends compliance with certain provisions of an existing 
regulation that will come into effect when the current stay expires on 
December 31, 2015 thereby continuing to relieve a reporting obligation 
while the Coast Guard solicits public comment regarding appropriate 
reporting. As a result, the currently-stayed requirement will resume 
only in a limited form. The rule also makes administrative changes 
affecting which Coast Guard entity directs and receives reporting. None 
of these changes will have a significant impact on regulated entities.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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. While some owners or operators of vessels intending to 
transit the RNA may be small entities, for the reasons stated in 
section V.A above, this rule will not have a significant economic 
impact on any vessel owner or operator.
    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. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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.

C. Collection of Information

    This rule does not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The existing 
collection is approved by the Office of Management and Budget under OMB 
control number 1625-0105.

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 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 E.O. 13132.
    Also, this rule does not have tribal implications under E.O. 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. If you believe this rule has 
implications for federalism or Indian tribes, please contact the person 
listed in the FOR FURTHER INFORMATION CONTACT section above.

E. 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.

F. 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 determined 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 involves administrative changes to resuming reporting requirements 
in a limited form under an established RNA. It is categorically 
excluded from further review under paragraph 34(g) of Figure 2-1 of the 
Commandant Instruction. This interim rule limits the existing, 
suspended, 24 hours a day, 7 days a week, 365 days a year reporting 
requirement throughout the entire RNA to require reporting only when 
and where directed by the District Commander, reducing the time frame 
and area that the reporting requirements are enforced. An environmental 
analysis checklist and categorical exclusion determination are not 
required. We seek any comments or information that may lead to the 
discovery of a significant environmental impact from this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

[[Page 79480]]

VI. Public Participation and Request for Comments

    We view public participation as essential, and will consider all 
comments and material received during the comment period. If you submit 
a comment, please include the docket number for this rulemaking, 
indicate the specific section of this document to which each comment 
applies, and provide a reason for each suggestion or recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, you may review a Privacy Act notice regarding the Federal 
Docket Management System in the March 24, 2005, issue of the Federal 
Register (70 FR 15086).
    Documents mentioned in this interim rule as being available in the 
docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or 
additional publications or supplemental information is provided.

List of Subjects in 33 CFR Part 165

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

    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:  Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 
1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security 
Delegation No. 0170.1.


0
2. In Sec.  165.830:
0
a. Revise paragraph (b);
0
b. In paragraph (c), remove the words ``Inland River Vessel Movement 
Center or (IRVMC)'' and add in their place the words ``Eighth District 
CDC Reporting Unit or (D8 CDCRU)'';
0
c. In paragraph (d) introductory text, remove the words ``Inland River 
Vessel Movement Center (IRVMC)'' and add in their place the words 
``Eighth District CDC Reporting Unit Eighth District (D8 CDCRU)'';
0
d. In paragraphs (d)(1) introductory text and (d)(1)(ii), remove the 
text ``IRVMC'' and add, in its place, the text ``D8 CDCRU'';
0
e. In paragraph (d)(1)(ix), remove the text ``IRVMC'' and add in its 
place the text ``District Commander or designated representative'';
0
f. In paragraph (d)(2) introductory text, remove the text ``IRVMC'' and 
add in its place the text ``D8 CDCRU'';
0
g. In paragraph (d)(2)(iv), remove the text ``IRVMC'' and add in its 
place the text ``District Commander or designated representative'';
0
h. Revise paragraph (d)(4).
0
i. In paragraphs (e), (f) introductory text, and (g) introductory text 
and the headings to tables 165.830(f) and 165.830(g), remove the text 
``IRVMC'' and add in its place the text ``D8 CDCRU'';
0
j. In paragraphs (f)(9) and (g)(4), remove the text ``IRVMC'' and add 
in its place the text ``District Commander or designated 
representative'';
0
k. In paragraph (i), remove the text ``the IRVMC'' and add in its place 
the text ``designated representative''; and
0
l. Amend Sec.  165.830 by removing all other occurrences of the text 
``IRVMC'' and adding, in its place, the text ``D8 CDCRU''.
    The revisions read as follows:


Sec.  165.830  Regulated Navigation Area; Reporting Requirements for 
Barges Loaded with Certain Dangerous Cargoes, Inland Rivers, Eight 
Coast Guard District.

* * * * *
    (b) Enforcement and applicability. (1) Beginning January 1, 2016, 
reporting requirements under this RNA will be enforced only when 
directed by the District Commander or designated representative under 
paragraphs (d)(1)(ix), (d)(2)(iv), (f)(9), and (g)(4) of this section. 
Reporting points as listed in paragraph (e) of this section may be used 
to determine and inform where reporting is required. Compliance under 
other parts of this section is stayed until a future date published in 
the Federal Register, if determined necessary.
    (2) This section applies to towing vessel operators and fleeting 
area managers responsible for CDC barges in the RNA. This section does 
not apply to:
    (i) Towing vessel operators responsible for barges not carrying 
CDCs barges, or
    (ii) Fleet tow boats moving one or more CDC barges within a 
fleeting area.
* * * * *
    (d) * * *
    (4) When required, reports under this section must be made either 
by email at [email protected] or via phone or fax as provided in 
the notification as directed by the District Commander or designated 
representative through the D8 CDCRU. Notification of when and where 
reporting is required may be made through Marine Safety Information 
Bulletins, Notices of Enforcement, email and/or through industry 
outreach. At all other times, reporting under this section is not 
required and communications should be directed to the Captain of the 
Port.
* * * * *

    Dated: December 8, 2015.
D.R. Callahan,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 2015-32135 Filed 12-21-15; 8:45 am]
BILLING CODE 9110-04-P