[Federal Register Volume 76, Number 11 (Tuesday, January 18, 2011)]
[Rules and Regulations]
[Pages 2827-2829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-852]



[[Page 2827]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2011-0003]
RIN 1625-AA11


Regulated Navigation Area; Reporting Requirements for Barges 
Loaded With Certain Dangerous Cargoes, Illinois Waterway System Located 
Within the Ninth Coast Guard District; Stay (Suspension)

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Commander, Ninth Coast Guard District is temporarily 
staying (suspending) reporting requirements under the Regulated 
Navigation Area (RNA) established by 33 CFR 165.921 for barges loaded 
with certain dangerous cargoes (CDC barges) in that portion of the 
Illinois Waterway System located in the Ninth Coast Guard District. 
During this suspension, the Coast Guard will analyze future reporting 
needs and evaluate possible changes in CDC reporting requirements. A 
final rule will either lift the suspension and restore the obligation 
of the affected public to comply with the existing reporting 
requirements, modify those requirements, or repeal the RNA. This 
suspension of the CDC reporting requirements in no way relieves towing 
vessel operators and fleeting area managers responsible for CDC barges 
in the RNA from their dangerous cargo or vessel arrival and movement 
reporting obligations currently in effect under other regulations or 
placed into effect under appropriate Coast Guard authority.

DATES: Effective midnight January 15, 2011, 33 CFR 165.921(d)-(h) are 
stayed until midnight January 15, 2013.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0003 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0003 in the 
``Keyword'' box, and then clicking ``Search.'' They are also 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.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
temporary rule, call or e-mail LCDR Ted Fowles, Coast Guard; telephone 
216-902-6010, e-mail: <a href="/cdn-cgi/l/email-protection#124677763c403c547d657e776152676171753c7f7b7e"><span class="__cf_email__" data-cfemail="025667662c502c446d756e677142777161652c6f6b6e">[email protected]</span></a>. If you have questions on 
viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and 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)(3)(B), the Coast Guard finds that 
good cause exists for not publishing a notice of proposed rulemaking 
(NPRM) with respect to this rule because it would be impracticable, 
unnecessary, and contrary to the public interest. The contract for the 
current CDC barge reporting system at the Inland River Vessel Movement 
Center (IRVMC) was extended to January 2011. In late December 2010 it 
was determined that the IRVMC reporting requirements would be suspended 
for a two-year period beginning at midnight January 15, 2011. As of 
January 16, 2011, the Coast Guard will have no way to receive and 
process reports. The short time span between late December and January 
15 makes it impracticable to issue a notice of proposed rulemaking 
(NPRM) about suspension of the reporting requirements of 33 CFR 165.921 
or to take public comments on the same. We believe prior notice and 
comment is unnecessary because we expect the affected public will have 
no objection to the temporary suspension of regulatory requirements. 
Prior notice and comment is also contrary to the public interest 
because there is no public purpose served by continuing to require 
reports when there is no mechanism for receiving or processing those 
reports.
    Under 5 U.S.C. 553(d)(1), a substantive rule that relieves a 
restriction may be made effective less than 30 days after publication. 
This temporary final rule, suspending the reporting requirements and 
thereby relieving the regulatory restriction on towing vessel operators 
and fleeting area managers provided by 33 CFR 165.921, takes effect at 
midnight on January 15, 2011, less than 30 days after publication.

Background and Purpose

    The legal basis for this rulemaking is the Coast Guard's authority 
to establish regulated navigation areas, under 33 U.S.C. 1226, 1231; 46 
U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 
6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; and 
Department of Homeland Security Delegation No. 0170.1. An RNA is a 
water area within a defined boundary for which regulations for vessels 
navigating within the area have been established, to control vessel 
traffic in a place determined to have hazardous conditions. 33 CFR 
165.10; Commandant Instruction Manual M16704.3A, 1-6.
    The purpose of this temporary final rule is to suspend the 
reporting requirements for CDC barges imposed by the RNA created in 33 
CFR 165.921. This temporary rule relieves the towing vessel operators 
and fleeting area managers responsible for CDC barges from the 
reporting requirements for a two-year period.

Discussion of Rule

    During the suspension of reporting requirements, towing vessel 
operators and fleeting area managers responsible for CDC barges will be 
relieved of their obligation to report their CDCs under 33 CFR 
165.921(d)-(h). This suspension in no way relieves towing vessel 
operators and fleeting area managers responsible for CDC barges from 
their dangerous cargo or vessel arrival and movement reporting 
obligations currently in effect under other regulations or placed into 
effect under appropriate Coast Guard authority.

Regulatory Analyses

    We developed this temporary 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.

Regulatory Planning and Review

    This 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. This rule is temporary and limited in 
nature by suspending CDC barge reporting requirements during a two-year 
period, creating no undue delay to vessel traffic in the regulated 
area.

[[Page 2828]]

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 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. This rule will affect the following entities, some which may 
be small entities: owners or operators of CDC barges intending to 
transit that portion of the Illinois Waterway System located in the 
Ninth Coast Guard District during this two-year period. This rule will 
not have a significant economic impact on those entities or a 
substantial number of any small entities for the following reason. This 
rule suspends reporting requirements for two years.

Assistance for Small Entities

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

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).

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. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 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.

Taking of Private Property

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

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.

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.

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.

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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule involves a two-year suspension 
of the reporting requirements in an RNA for CDC barges.
    This temporary rule suspends the reporting requirements established 
for CDC barges transiting that portion of the Illinois Waterway System 
located in the Ninth Coast Guard District. Under figure 2-1, paragraph 
(34)(g), of the Instruction, an environmental analysis checklist and a 
categorical exclusion determination are not required for this rule.

List of Subjects in 33 CFR Part 165

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


[[Page 2829]]


    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:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Amend 33 CFR 165.921 by staying paragraphs (d)-(h) from midnight 
January 15, 2011 to midnight January 15, 2013.

    Dated: January 7, 2011.
Michael N. Parks,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2011-852 Filed 1-14-11; 8:45 am]
BILLING CODE 9110-04-P


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