81464 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

required to be disclosed include, but are 

not limited to, inspection notes from the 

entire subject inspection, rebuttal forms, 

citation documentation, narratives, 

photos, diagrams, preshift and onshift 

reports, training documents, mine maps, 

witness statements (subject to the 

provisions of § 2700.61), witness lists, 

and written opinions of expert 

witnesses, if any. 

(b) If any items are withheld from 

disclosure on grounds of privilege, the 

disclosing party shall provide a log 

describing each item and stating the 

reason(s) why it was not produced. The 

privilege log shall provide an index, 

identifying the allegedly privileged 

documents and shall provide sufficient 

detail to permit an informed decision as 

to whether the document is at least 

potentially privileged. Specifically, the 

index must include: A description of the 

document, including its subject matter 

and the purpose for which it was 

created; the date the document was 

created; the name and job title of the 

author of the document; and if 

applicable, the name and job title of the 

recipient(s) of the document. The judge 

may order an in camera inspection of 

the privileged documents, if necessary, 

to determine the proper application of 

the privilege. 

§ 2700.106 Pre-Hearing Conference. 

(a) When held. As early as practicable 

after the parties have received the 

materials set forth in § 2700.105, the 

presiding Judge will order and conduct 

a pre-hearing conference. At the 

discretion of the Judge, the pre-hearing 

conference may be held in person, by 

telephone, or electronic means. After 

receipt of the materials set forth in 

§ 2700.105 and prior to the pre-hearing 

conference, parties are required to 

engage in a discussion to explore the 

possibility of settlement. 

(b) Content. At the pre-hearing 

conference, the parties will discuss the 

following: Settlement efforts in the case; 

the narrowing of issues; an agreed 

statement of issues and facts; defenses; 

witnesses and exhibits; motions; and 

any other pertinent matter. Within a 

time determined by the Judge during the 

pre-hearing conference, the parties must 

provide each other with documents or 

materials intended for submission as 

exhibits at the hearing that have not 

already been provided in accordance 

with the provisions of § 2700.105. At the 

conclusion of the conference, the Judge 

will issue an order setting forth any 

agreements reached by the parties, and 

will specify in the order the issues to be 

addressed by the parties at hearing. 

§ 2700.107 Discovery. 

Discovery is not permitted except as 

ordered by the Administrative Law 

Judge. 

§ 2700.108 Hearing. 

(a) Procedures. As soon as practicable 

after the conclusion of the pre-hearing 

conference, the Judge will hold a 

hearing on any issue that remains in 

dispute. The hearing will be in 

accordance with subpart G of this part, 

except for §§ 2700.56, 2700.57, 2700.58, 

2700.59, 2700.65, and 2700.67, which 

will not apply. 

(b) Agreements. At the beginning of 

the hearing, the Judge will enter into the 

record all agreements reached by the 

parties as well as defenses raised during 

the pre-hearing conference. The parties 

and the Judge then will attempt to 

resolve or narrow the remaining issues. 

The Judge will enter into the record any 

further agreements reached by the 

parties. 

(c) Evidence. The Judge will receive 

oral, physical, or documentary evidence 

that is relevant, and not unduly 

repetitious or cumulative. Testimony 

will be given under oath or affirmation. 

The parties are reminded that the 

Federal Rules of Evidence do not apply 

in Commission proceedings. Any 

evidence not disclosed as required by 

§§ 2700.105 and 2700.106(b), including 

the testimony of witnesses not 

identified pursuant to § 2700.106(b), 

shall be inadmissible at the hearing, 

except where extraordinary 

circumstances are established by the 

party seeking to offer such evidence. 

(d) Court reporter. A court reporter 

will be present at the hearing. An 

official verbatim transcript of the 

hearing will be prepared and filed with 

the Judge. 

(e) Oral and written argument. Each 

party may present oral argument at the 

close of the hearing. Post-hearing briefs 

will not be allowed except by order of 

the Judge. 

(f) Judge’s decision. The Judge shall 

make a decision that constitutes the 

final disposition of the proceedings 

within 60 calendar days after the 

hearing. The decision shall be in writing 

and shall include all findings of fact and 

conclusions of law; the reasons or bases 

for them on all the material issues of 

fact, law, or discretion presented by the 

record; and an order. If a decision is 

announced orally from the bench, it 

shall be reduced to writing within 60 

calendar days after the hearing. An 

order by a Judge approving a settlement 

proposal is a decision of the Judge. 

§ 2700.109 Review of Judge’s Decision. 

After the issuance of the Judge’s 

written decision, any party may petition 

the Commission for review of the 

Judge’s written decision as provided for 

in subpart H of this part. 

§ 2700.110 Application. 

The rules in this subpart will govern 

proceedings before a Judge in a case 

designated for Simplified Proceedings 

under §§ 2700.102 and 2700.103. The 

provisions of subparts A and I apply to 

Simplified Proceedings when consistent 

with these rules in subpart J. The 

provisions of subpart C of this part 

apply to Simplified Proceedings except 

for § 2700.29, which does not apply. 

The provisions of subpart G of this part 

apply to Simplified Proceedings except 

for §§ 2700.56, 2700.57, 2700.58, 

2700.59, 2700.65, and 2700.67, which 

do not apply. The provisions of subpart 

H of this part apply to Simplified 

Proceedings except for § 2700.76, which 

does not apply. The provisions of 

subparts B, D, E and F of this part do 

not apply to Simplified Proceedings. 

Dated: December 20, 2010. 

Mary Lu Jordan, 

Chairman, Federal Mine Safety and Health 

Review Commission. 

[FR Doc. 2010–32417 Filed 12–27–10; 8:45 am] 

BILLING CODE 6735–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2010–1109] 

RIN 1625–AA00 

Safety Zone; Columbia River, The 

Dalles Lock and Dam 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone on 

the waters of the Columbia River in the 

vicinity of The Dalles Lock and Dam 

while the Army Corps of Engineers 

completes repairs to the lock. The safety 

zone is necessary to help ensure the 

safety of workers conducting the repairs 

as well as the maritime public and will 

do so by prohibiting all persons and 

vessels from entering the construction 

zone. 

DATES: This rule is effective in the CFR 

on December 28, 2010 through April 1, 

2011. This rule is effective with actual 

notice for purposes of enforcement 


srobinson on DSKHWCL6B1PROD with RULES
Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 81465 

starting at 6 a.m. on December 10, 2010. 

This rule will remain in effect through 

11:59 p.m. on April 1, 2011. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket USCG–2010– 

1109 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2010–1109 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 on this temporary 

rule, call or e-mail LTJG Jeremy 

Maginot, Waterways Management 

Division, Coast Guard MSU Portland; 

telephone 503–247–4004, e-mail D13- 

SG-M-msuportlandwwm@uscg.mil. 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)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because to do 

so would be contrary to public interest 

since the event will have begun by the 

time the notice could be published and 

comments taken. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register because to do otherwise would 

be contrary to public interest since the 

event will have begun by the time the 

notice could be published and 

comments taken. 

Background and Purpose 

The U.S. Army Corps of Engineers 

will be completing repairs on The Dalles 

Lock from December 10, 2010 until 

April 1, 2010. The dangers associated 

with such a large scale construction 

project necessitate the establishment of 

this safety zone to help ensure the safety 

of the workers conducting the repairs as 

well as the maritime public. 

Discussion of Rule 

The safety zone created by this rule 

covers all waters of the Columbia River 

encompassed within the area created by 

a line beginning at the tip of the south 

wall of The Dalles Lock entrance basin 

at 45°37′03.4′′ N, 121°08′02.6′′ W; thence 

continuing northwest from the south 

wall of The Dalles Lock entrance basin 

to the Washington bank at 45°37′06.0′′ 

N, 121°08′06.1′′ W; thence continuing 

southwest along the bank of the 

Columbia River to the east end of The 

Dalles Lock; thence across the 

downstream gate to the south lock wall 

of The Dalles Lock; thence continuing 

along the south lock wall of The Dalles 

Lock and the south wall of The Dalles 

Lock entrance basin to the starting point 

at 45°37′03.4′′ N, 121°08′02.6′′ W. 

Geographically, this area encompasses 

The Dalles Lock and the upstream lock 

entrance basin of The Dalles Lock. 

The safety zone will be in effect from 

6 a.m. on December 10, 2010 through 

11:59 p.m. on April 01, 2011. All 

persons and vessels are prohibited from 

entering or remaining in the safety zone 

unless authorized by the Captain of the 

Port or designated representative. 

Regulatory Analyses 

We developed this 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. 

The Coast Guard has made this 

determination based on the fact that the 

safety zone created by this rule will not 

significantly affect the maritime public 

because the area covered has little 

commercial or recreational activity. In 

addition, vessels may enter the safety 

zone with the permission of the Captain 

of the Port or his designated 

representative. 

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 may affect the following 

entities some of which may be small 

entities: The owners and operators of 

vessels intending to operate in the area 

covered by the safety zone created in 

this rule. The safety zone will not have 

a significant economic impact on a 

substantial number of small entities 

because the area covered has little 

commercial or recreational activity. In 

addition, vessels may enter the safety 

zone with the permission of the Captain 

of the Port or his designated 

representative. 

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 


srobinson on DSKHWCL6B1PROD with RULES
81466 Federal Register / Vol. 75, No. 248 / Tuesday, December 28, 2010 / Rules and Regulations 

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 (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. 

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 the establishment of a safety 

zone. 

An environmental analysis checklist 

and a categorical exclusion 

determination are available in the 

docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

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 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T13–173 to read as 

follows: 

§ 165.T13–173 Safety Zone; Columbia 

River, The Dalles Lock and Dam 

(a) Location. The following is a safety 

zone: All waters of the Columbia River 

encompassed within the area created by 

a line beginning at the tip of the south 

wall of The Dalles Lock entrance basin 

at 45° 37′ 03.4′′ N, 121° 08′ 02.6′′ W; 

thence continuing northwest from the 

south wall of The Dalles Lock entrance 

basin to the Washington bank at 45° 37′ 

06.0′′ N, 121° 08′ 06.1′′ W; thence 

continuing southwest along the bank of 

the Columbia River to the east end of 

The Dalles Lock; thence across the 

downstream gate to the south lock wall 

of The Dalles Lock; thence continuing 

along the south lock wall of The Dalles 

Lock and the south wall of The Dalles 

Lock entrance basin to the starting point 

at 45° 37′ 03.4′′ N, 121° 08′ 02.6′′ W. 

Geographically this area encompasses 

The Dalles Lock and the upstream lock 

entrance basin of The Dalles Lock. 

(b) Regulations. In accordance with 

the general regulations in 33 CFR part 

165, subpart C, no person may enter or 

remain in the safety zone created in this 

section or bring, cause to be brought, or 

allow to remain in the safety zone 

created in this section any vehicle, 

vessel, or object unless authorized by 

the Captain of the Port or designated 

representative. Designated 

representatives are Coast Guard or Army 

Corps of Engineers personnel designated 

by the Captain of the Port to grant 

persons or vessels permission to enter or 

remain in the safety zone created by this 

section. See 33 CFR part 165, subpart C, 

for additional information and 

requirements. 

(c) Enforcement Period. The safety 

zone created in this section will be in 

effect from 6 a.m. on December 10, 2010 

through 11:59 p.m. on April 1, 2011. 

Dated: December 9, 2010. 

D.E. Kaup 

Captain, U.S. Coast Guard, Captain of the 

Port, Columbia River. 

[FR Doc. 2010–32544 Filed 12–27–10; 8:45 am] 

BILLING CODE 9110–04–P 


srobinson on DSKHWCL6B1PROD with RULES