Limited Service Domestic Voyage Load Lines for River Barges on Lake Michigan, 32323-32327 [2011-13754]
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32323
Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by August 5, 2011. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. Parties with
objections to this direct final rule are
encouraged to file a comment in
response to the parallel notice of
proposed rulemaking for this action
published in the proposed rules section
of today’s Federal Register, rather than
file an immediate petition for judicial
review of this direct final rule, so that
EPA can withdraw this direct final rule
and address the comment in the
proposed rulemaking.
This action to approve Pennsylvania’s
quality assurance program changes for
oversight of the safety inspection
program in non-I/M counties may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Environmental protection, Incorporation
by reference, Intergovernmental
relations, Nitrogen dioxide, Ozone,
Volatile organic compounds.
Name of non-regulatory SIP revision
Applicable geographic area
*
Revision of the Quality Assurance Protocol for the Safety
Inspection Program
in Non-I/M Counties.
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Non-I/M Program Region, Counties of: Adams, Armstrong,
Bedford, Bradford, Butler, Cameron, Carbon, Clarion,
Clearfield, Clinton, Columbia, Crawford, Elk, Fayette, Forest, Franklin, Fulton, Greene, Huntingdon, Indiana, Jefferson, Juniata, Lawrence, McKean, Mifflin, Monroe,
Montour, Northumberland, Perry, Pike, Potter, Schuylkill,
Snyder, Somerset, Sullivan, Susquehanna, Tioga, Union,
Venango, Warren, Wayne, and Wyoming.
*
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[FR Doc. 2011–13878 Filed 6–3–11; 8:45 am]
BILLING CODE 6560–50–P
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
Coast Guard, DHS.
Final rule.
WReier-Aviles on DSKGBLS3C1PROD with RULES
AGENCY:
ACTION:
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
SUMMARY:
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40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart NN—Pennsylvania
2. In § 52.2020, the table in paragraph
(e)(1) is amended by adding an entry for
Revision of the Quality Assurance
Protocol for the Safety Inspection
Program in Non-I/M Counties at the end
of the table to read as follows:
■
§ 52.2020
*
State submittal date
*
5/22/09
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 https://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),
PO 00000
Dated: May 18, 2011.
Shawn M. Garvin,
Regional Administrator, Region III.
Sfmt 4700
Identification of plan.
*
*
(e) * * *
(1) * * *
*
*
EPA approval date
Additional
explanation
*
6/6/11 [Insert page
number where
the document begins].
*
Applicable to SIPapproved safety
inspection program regulation
for non-I/M counties at Title 67,
Part 1, Chapter
175.
Coast Guard; telephone 202–372–1370,
e-mail Thomas.D.Jordan@uscg.mil. 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
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L. Technical Standards
M. Environment
ABS American Bureau of Shipping
DHS Department of Homeland Security
HazMat Hazardous Material
NEPA National Environmental Policy Act
of 1969
SCA Small Craft Advisory
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).
II. Regulatory History
IV. Background
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 30day 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.
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.
WReier-Aviles on DSKGBLS3C1PROD with RULES
I. Abbreviations
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.
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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.
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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
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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:
§ 45.171 Purpose: In paragraph (c),
we revise Table 45.171 to restore the
original weather restrictions that
appeared in the interim rule.
§ 45.187 Weather limitations: We
remove all references to SCA
conditions. In paragraph (a), we restore
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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.
§ 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
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32325
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
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Federal Register / Vol. 76, No. 108 / Monday, June 6, 2011 / Rules and Regulations
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
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
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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.
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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
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.
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J. Indian Tribal Governments
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.
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.
List of Subjects in 46 CFR Part 45
M. Environment
§ 45.171
We have analyzed this final rule
under Department of Homeland
*
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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
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.
2. In § 45.171, revise Table 45.171 in
paragraph (c) to read as follows:
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Purpose.
*
(c) * * *
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§ 45.187
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§ 45.191
3. Revise § 45.187 to read as follows:
Pre-departure requirements.
*
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
§ 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.
*
*
*
*
(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.
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49 CFR Parts 383 and 390
Regulatory Guidance on the
Designation of Steerable Rear Axle
Operators (Tillermen) as Drivers of
Commercial Motor Vehicles
[FR Doc. 2011–13754 Filed 6–3–11; 8:45 am]
BILLING CODE 9110–04–P
SUMMARY:
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AGENCY:
FMCSA issues regulatory
guidance concerning the applicability of
the term ‘‘driver’’ to ‘‘tillerman,’’ a person
who controls the steerable rear axle on
a commercial motor vehicle. The term
‘‘driver’’ is used in FMCSA’s commercial
4. Revise § 45.191(a) to read as
follows:
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Federal Motor Carrier Safety
Administration
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of Regulatory Guidance.
■
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DEPARTMENT OF TRANSPORTATION
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Agencies
[Federal Register Volume 76, Number 108 (Monday, June 6, 2011)]
[Rules and Regulations]
[Pages 32323-32327]
From the Federal Register Online via the Government Printing 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 https://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 Thomas.D.Jordan@uscg.mil. 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
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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