Regulated Navigation Area; Mississippi River, Miles 88 to 240 Above Head of Passes

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD08-94-006]

RIN 2115-AE81

Regulated Navigation Area; Mississippi River, Miles 88 to 240

Above Head of Passes

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is adopting as final, an interim final rule

published in April 1994 extending the upper limits of the Mississippi

River Regulated Navigation Area to cover the area between river miles

127 and 240, above Head of Passes, up to the Port of Baton Rouge. This

regulation is necessary to improve the safety of barge fleeting areas

that exist on the Mississippi River between New Orleans and Baton

Rouge, Louisiana, an extremely confined navigation area with a high

volume of marine traffic. The Coast Guard believes that the extension

of the Regulated Navigation Area has resulted in a decrease in the

number of barge breakaways along the lower Mississippi River between

New Orleans and Baton Rouge, Louisiana, although the lack of a high

water season earlier this spring

[[Page 37942]]

may have also contributed to this reduction.

EFFECTIVE DATE: This rule is effective on July 25, 1995.

FOR FURTHER INFORMATION CONTACT:

CDR Harvey R. Dexter, Marine Safety Division, Eighth Coast Guard

District, telephone: (504) 589-6271.

SUPPLEMENTARY INFORMATION:

Drafting Information

The drafters of this regulation are LT Jeff Novotny, project

officer for the Captain of the Port, New Orleans, Louisiana, LT Verne

Gifford, project officer, Eighth Coast Guard District Marine Safety

Division, and LT Elisa Holland, project attorney, Eighth District Legal

Office.

Regulatory History

On April 28, 1994, the Coast Guard issued an Interim Final Rule

extending the upper limits of the Mississippi River Regulated

Navigation Area, 33 CFR 165.803, to cover the area between river miles

88 and 240, above Head of Passes, up to the Port of Baton Rouge. (59 FR

21933) This rule was published as an interim rule, effective on the

date of publication. The original comment period expired on June 27,

1994. The Coast Guard received three comments during this period. In

response to requests from some commenters who wished to gather and

provide additional information prior to the issuance of the final rule,

the Coast Guard announced a public hearing and reopened the comment

period for an additional 90 days on August 12, 1994. (59 FR 41407).

Four written comments were received. A public hearing was held on

September 2, 1994. Nine persons made oral comments. Of those nine oral

commenters, four also provided their comments in written form, two

during the original comment period and two during the reopened comment

period. Based upon oral testimony and written comments, the Coast Guard

prepared this final rule. This rule is being made effective on the date

of publication. The interim final rule, effective since April 28, 1994,

has contributed to a decrease in barge breakaways. In addition, high

water conditions have recently developed and are expected to continue

throughout the summer. Therefore, the Coast Guard for good cause finds,

under 5 U.S.C. 553(d)(3), that this rule should be made effective in

less than 30 days after publication.

Background and Purpose

The regulation was published as an interim final rule in April 1994

due to barge fleet breakaways on the Mississippi River within the

Captain of the Port New Orleans zone, high water conditions and higher

than normal river stages which were expected to continue during the

summer of 1994. The interim final rule extended the then-existing

Regulated Navigation Area (mile 88 to mile 127) (hereinafter referred

to as the old RNA) to mile 240 above Head of Passes. The regulation

consisted of general procedural and equipment requirements for mooring

of barge fleets on the Mississippi River and also outlined additional

specific fleeting requirements during periods of high water.

The Regulated Navigation Area extension from mile 127 to mile 240

(hereinafter referred to as the new RNA) was deemed necessary due to

data showing that more barge fleet breakaways were occurring in the new

RNA than in the old RNA. Casualty investigations appeared to indicate

that a majority of the breakaways occurred as the result of a passing

tow or deep draft vessel striking the fleet or from large wakes

generated by passing vessels. Both of those causal factors increase

during high water conditions. Coast Guard fleet inspectors also found

that many of the fleeting operations located in the new RNA not only

did not conform with the mooring regulations in the old RNA, but also

had weak and inadequate moorings and therefore were more vulnerable to

breakaways during high water. At the public hearing held on September

2, 1994, the Coast Guard provided statistics showing barge breakaways

for the period 1990-July 1994 in both the old and new RNA's. Those

statistics supported, in part, the assertions in the interim final

rule.

Discussion of Comments and Changes

Seven written comments were received in response to the interim

final rule. Six comments contain significant criticism of the interim

final rule and the seventh comment supported the Coast Guard's decision

to extend the Regulated Navigation Area. Nine oral comments were

received at the hearing. Of those nine oral comments, four were also

provided in written form. Specific comments are discussed below.

One commenter pointed out that the regulations adopted in the

Interim Final Rule were twenty years old and suggested that the

regulatory requirements should be reviewed throughout the entire

Regulated Navigation Area due to changes in the industry. Four other

commenters also made recommendations that a comprehensive review of the

regulations was in order. The Coast Guard agrees. Changes in the barge

industry, marine traffic within the RNA, and barge handling and mooring

technology make it appropriate to conduct a comprehensive review of

these regulations. One commenter recommended the formation of a quality

action team composed of industry and Coast Guard personnel to undertake

such a review. At a future date, the Coast Guard will publish an

advance notice of proposed rulemaking to solicit public comment and

participation in comprehensive review of the rules in place throughout

the RNA. At that time, a decision will be made concerning the best

mechanism for obtaining public input and participation. However, until

such time as this review has been completed and changes, if any, are

made, the safety of persons and vessels operating within the RNA as

well as the environment require that the existing Interim Final

Regulations, as modified in this Final Rule, remain in effect.

One commenter stated that the present rule (33 CFR 165.803(d)(2))

allows for subjective determination of the condition of mooring wires

and lines and recommended that the Coast Guard work with industry to

establish guidelines to be used by Coast Guard inspectors and fleet

personnel in determining whether a line is worn or defective. One

commenter suggested that the captain of the vessel rather than the

person actually inspecting the mooring be able to initial each

inspection in the vessel log as required by 33 CFR 165.803 (h) and (i).

The Coast Guard will work with industry to arrive at some general

guidelines for determining when a line is excessively worn or defective

and will examine the possibility of having the master of the tug rather

than the person conducting the inspection as part of the comprehensive

review of these regulations referred to above. However, we feel that if

the person actually completing the inspection were to document the

inspection by initiating the log, it will engender a greater sense of

responsibility and will result in better inspection of the lines. One

commenter recommended that the Regulated Navigation Area should include

all fleets, not just those with eight or more barges, that different

regulations should be established for different size fleets, and that

the regulation should also cover dock facilities. This recommendation

will be considered as part of the comprehensive review referred to

above.

``Breakaway'' is presently defined as ``a barge that is adrift and

is not under the control of a towing vessel''. 33 CFR 165.803(a)(1).

One commenter recommended that the definition of

[[Page 37943]]

breakaway be redefined to mean a barge that is adrift and is not under

the control of or being worked by a towing vessel. It is the Coast

Guard's position that the present definition is sufficiently broad to

exclude barges that are briefly or temporarily adrift but that are

being worked by a tow boat. At the present time, the Coast Guard plans

no changes to the definition.

Three commenters recommended that the Coast Guard pursue an

aggressive role in monitoring the speed and performance of deep draft

vessels operating in the Regulated Navigation Area. The Coast Guard

does not have the resources to monitor every deep draft vessel in the

Regulated Navigation Area. The Coast Guard relies, in part, on the

skill and judgment of the master and pilot to navigate safety. However,

the Coast Guard actively investigates barge breakaway incidents

involving deep draft vessels if the vessel is clearly identified, and

encourages parties to accurately report deep draft vessels navigating

unsafely. The Coast Guard will investigate, and, if appropriate, take

action against the vessel, the vessel's master or the pilot.

Two comments questioned why the new RNA was extended to mile 240

AHP since the 190 Highway bridge in Baton Rouge at mile 234 AHP is the

northern-most point reachable by deep-draft vessel and the interim

final rule focuses on deep-draft vessels as the primary cause of barge

breakaways. This is an incorrect interpretation of the interim final

rule. While deep-draft vessels may contribute to barge breakaways, the

main concerns of the Regulated Navigation Area is barge fleeting

safety, adequacy of barge moorings, and the additional hazards posed by

high water conditions. Although deep-draft vessels cannot transit the

Mississippi River further than mile 234 AHP, barge fleeting facilities

extend above mile 234 AHP. Both the Port of Baton Rouge and the 190

Highway bridge are at or above mile 234 AHP and a barge breakaway in

the river above mile 234 AHP could cause property damage, bridge damage

or loss of life. Therefore, the Coast Guard believes the Regulated

Navigation Area should remain extended to mile 240 AHP.

Three commenters stated that it would be physically impossible to

immediately comply with the stern mooring requirement of 33 CFR

165.803(e)(1) and (2). A number of reasons were cited including high

water, availability of contractors and the Army Corps of Engineers

permitting process. Two commenters stated that installing stern

moorings would be a significant capital expense, approximately $8,000

per anchor pile. Three commenters suggested that handling additional

and, in many cases, heavier wires would increase the risk of personal

injury to crew members. In addition, two commenters stated that the

annual operating cost to the facility for maintaining stern wires and

boat time for handling stern wires would increase by approximately 10%.

For these reasons, as well as those discussed below, at the present

time, the Coast Guard will not require stern moorings in the new RNA

(mile 127 to mile 240). Stern moorings will still be required in the

old RNA (mile 88 to mile 127). Barge fleeting facilities in the old RNA

may apply for a waiver of the stern mooring requirement and the COTP,

as authorized by 33 CFR 165.803(b), may, if warranted, grant such a

waiver. Several commenters made comments which indirectly called into

question the usefulness of the stern wires in reducing the likelihood

of breakaways. The Coast Guard believes that stern wires do in fact

reduce barge breakaways, and is continuing to collect data concerning

this issue. However, this requirement will be reviewed as part of the

comprehensive review referred to above. Three commenters also requested

that enforcement of the interim final rule be postponed until the

issues raised during the comment period had been resolved. Based on the

comments above concerning the economic impact of stern wire

installation and use, the Coast Guard has exercised its enforcement

discretion and has not been actively enforcing the requirements of 33

CFR 165.803(e)(1) and (2) in the new RNA. To the best of the Coast

Guard's knowledge, no barge fleeting facility in the new RNA has

installed stern moorings.

All six commenters took issue with the provisions of 33 CFR

165.803(m)(2)(i) and (iii) and the Coast Guard's interpretation of

those provisions. Those provisions require that, during high water,

each fleet of between eight and 100 barges be attended by one radar-

equipped towboat. The towboat must be immediately operational and

within 500 yards of the barges. Those provisions have, in the past,

been interpreted to mean that the towboat must stand by and could not

perform any work in the fleet. All of the commenters stated that not

allowing the stand by tug to work would create an economic hardship.

One commenter noted that requiring a stand by boat would cost an

additional $600,000 annually. Another commenter stated the cost of a

stand by boat would be approximately $180,000 per year per additional

standby boat. Both commenters noted that it would be difficult to pass

these costs on to the customers. In addition, two commenters noted that

there are not enough towboats available. The Coast Guard believes that

the goals of promoting safety and preventing barge breakaways in the

Regulated Navigation Area can be satisfied if the towboat required by

33 CFR 165.803(m)(2)(i) and (iii) is able to work within the fleet.

This is permitted by the language of the existing regulation and no

enforcement action will be taken against operators because a boat is

being used to work the fleet.

Regulatory Evaluation

In the interim final rule, the Coast Guard asserted that the rule

was not a significant regulatory action under section 3(f) of Executive

Order 12866 and did not require an assessment of potential costs and

benefits under section 6(a)(3) of that order. The Coast Guard also

asserted that the rule was not significant under the regulatory

policies and procedures of the Department of Transportation (DOT) (44

FR 11034), February 26, 1979 and that a full Regulatory Evaluation

under paragraph 10e of the regulatory policies and procedures of the

Department of Transportation was unnecessary. The Coast Guard received

four comments addressing the issue of whether the interim final rule

was a significant regulatory action. Two comments generally stated that

the interim final rule, with its requirement of stern moorings and

additional standby boats could force barge fleeting facilities out of

business. One commenter noted that the requirement of stern moorings

would require an immediate capital investment of $400,000 plus

additional operating costs of $150,000. In addition, the commenter

noted that requiring a stand-by boat would cost an additional $600,000

annually. In short, the commenter stated, the interim final rule would

cost him $1,150,000 the first year and $750,000 each year thereafter

and would put him out of business. The commenter stated this rule would

catastrophically disrupt the inland river transportation system.

Another commenter echoed these comments, stating that these costs would

be prohibitive for most fleets. The final rule deletes the requirement

for stern moorings in the new RNA. Additionally, the standby boats

required by 33 CFR 165.803(m)(2) (i) and (iii) may perform work within

the fleet thereby reducing the economic impact of this requirement. No

other requirements contained in the Regulated Navigation

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Area constitute a significant regulatory action under section 6(a)(3)

of Executive Order 12866. Therefore, this regulation is not a

significant regulatory action under section 3(f) of Executive Order

12866 and does not require an assessment of potential costs and

benefits under section 6(a)(3) of that order. It has not been reviewed

by the Office of Management and Budget under that order. It is not

significant under the regulatory policies and procedures of the

Department of Transportation (DOT) (44 FR 11034), February 26, 1979).

The economic impact of this rule is so minimal that a full Regulatory

Evaluation under paragraph 10e of the regulatory policies and

procedures of DOT is unnecessary.

Small Entities

The Coast Guard asserted in the interim final rule that since the

rule did not require a general notice of proposed rulemaking (as it was

published as an interim final rule as allowed by 5 U.S.C. 553(b)(B) &

(d)(3)), it was exempt from the requirements of the Regulatory

Flexibility Act (5 U.S.C. section 601 et seq.). However, the Coast

Guard did review the rule for potential impact on small entities and

took the position that the interim final rule would not have a

significant economic impact on a substantial number of small entities.

The Coast Guard invited comment from parties who felt they were a small

entity on which the rule would have significant economic impact. One

commenter took issue with the Coast Guard's assertion that notice and

public procedure prior to the effective date of the rule would be

contrary to public interest, arguing that the extension of the

regulated navigation area was not a minor or technical amendment to a

rule as contemplated by 5 U.S.C. 553(b)(3) & (d)(3). The commenter

stated that an initial and final flexibility analysis under 5 U.S.C.

603 et seq., should be done. The commenter provided information to

support the assertion that it was a small entity as defined by 15

U.S.C. 632(a). The commenter noted that the requirement of stern

moorings would require an immediate capital investment of $400,000 plus

additional operating costs of $150,000. In addition, the commenter

noted that requiring a stand-by boat would cost an additional $500,000

annually. In short, the commenter stated, the interim final rule would

cost him $1,150,000 the first year and $750,000 each year thereafter

and would put him out of business. The commenter asserted that the

interim final rule would have a significant economic impact on all of

the barge fleeting facilities in the new RNA. Another commenter took

exception to the Coast Guard's assertion that the interim final rule

would not have a significant economic impact on any small entities. The

commenter stated stern moorings would cost approximately $8,000 per

mooring plus 10% in additional operating costs annually. The cost of a

standby boat would be approximately $180,000 per year per additional

standby boat. The commenter stated the interim final rule would impose

a substantial economic impact on the barge fleets in the RNA if the

standby boats were prohibited from working within the barge fleet. As

previously noted, this final rule deletes the requirement of stern

moorings in the new RNA and the standby boats required by 33 CFR

165.803(m)(2) (i) and (iii) are able to perform work within the fleet.

Therefore, the Coast Guard certifies under section 605(b) of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that this rule will

not have a significant economic impact on a substantial number of small

entities.

Collection of Information

This rule contains collection-of-information requirements. The

Coast Guard has submitted the requirements to the Office of Management

and Budget (OMB) for review under section 3504(h) of the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.), and OMB has approved them. The

section number is Sec. 165.803(i) and the corresponding OMB approval

number is OMB Control Number 2115-0092.

Federalism Assessment

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this final rule does not raise sufficient federalism concerns to

warrant the preparation of a Federalism Assessment.

Environmental Consideration

This final rule has been thoroughly reviewed by the Coast Guard,

the lead Federal agency for purposes of the National Environmental

Policy Act (NEPA). It has been determined not to have a significant

effect on the human environment or environmental conditions and to be

categorically excluded from further environmental documentation in

accordance with section 2.B.2.c. of Commandant Instruction M16475.1B.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation (water), Reporting and

recordkeeping requirements, Security measures, Waterways.

Final Regulation

Accordingly, the interim final rule amending 33 CFR part 165 which

was published at 59 FR 21933 on April 28, 1994, is adopted as a final

rule with the following changes:

PART 165--[AMENDED]

1. The authority citation for part 165 continues to read as

follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),

6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.

2. In Sec. 165.803, the introductory text and paragraphs (e)(1) and

(e)(2) are revised to read as follows:

Sec. 165.803 Mississippi River--regulated navigation area.

The following is a Regulated Navigation Area--The waters of the

Mississippi River between miles 88 and 240 above Head of Passes.

* * * * *

(e) Mooring to a mooring device. (1) A barge may be moored to

mooring devices if the upstream end of that barge is secured to at

least one mooring device and the downstream end is secured to at least

one other mooring device, except that from mile 127 to mile 240 a barge

may be moored to mooring devices if the upstream end of that barge is

secured to at least one mooring device.

(2) Barges moored in tiers may be shifted to mooring devices if the

shoreward barge at the upstream end of the tier is secured to at least

one mooring device, and the shoreward barge at the downstream end of

the tier is secured to at least one other mooring device, except that

from mile 127 to mile 240 barges moored in tiers may be shifted to

mooring devices if the shoreward barge at the upstream end of the tier

is secured to at least one mooring device.

* * * * *

Dated: June 20, 1995.

C.B. Newlin,

Captain, U.S. Coast Guard Commander, 8th Coast Guard Dist., Acting.

[FR Doc. 95-18252 Filed 7-24-95; 8:45 am]

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