[Federal Register: February 26, 2009 (Volume 74, Number 37)]
[Rules and Regulations]
[Page 8753-8756]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe09-23]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2008-0129]
RIN 1625-AA00
Safety Zone; Baltimore Captain of the Port Zone
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule with request for comments.
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SUMMARY: The Coast Guard is establishing a temporary safety zone in all
navigable waters of the Captain of the Port Baltimore zone. The
temporary safety zone restricts vessels from transiting the zone during
the effective period, unless authorized by the Captain of the Port
Baltimore, or his designated representative. This safety zone is
necessary to protect mariners from the hazards associated with ice in
the navigable waterway.
DATES: This rule is effective from January 17, 2009 until April 15,
2009. Comments and related material must either be submitted to our
online docket via http://www.regulations.gov on or before March 30,
2009 or reach the Docket Management Facility by that date.
ADDRESSES: You may submit comments identified by docket number USCG-
2008-0129 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is 202-366-9329.
To avoid duplication, please use only one of these methods. For
instructions on submitting comments, see the ``Public Participation and
Request for Comments'' portion of the SUPPLEMENTARY INFORMATION section
below.
FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary interim rule, call Ronald L. Houck, Waterways Management
Division, at 410-576-2674 or 2693. If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted,
without change, to http://www.regulations.gov and will include any
personal information you have provided.
Submitting comments:
If you submit a comment, please include the docket number for this
rulemaking (USCG-2008-0129), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online, or by fax, mail or hand delivery, but please use only one of
these means. We recommend that you include your name and a mailing
address, an e-mail address, or a phone number in the body of your
document so that we can contact you if we have questions regarding your
submission.
To submit your comment online, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert ``USCG-2008-0129'' in the Docket ID box, press Enter,
and then click on the balloon shape in the Actions column. If you
submit your comments by mail or hand delivery, submit them in an
unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit them by mail and would
like to know that they reached the Facility, please enclose a stamped,
self-addressed postcard or envelope. We will consider all comments and
material received during the comment period and may change this rule
based on your comments.
Viewing comments and documents:
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
select the Advanced Docket Search option on the right side of the
screen, insert USCG-2008-0129 in the Docket ID box, press Enter, and
then click on the item in the Docket ID column. You may also visit
either the Docket Management Facility in Room W12-140 on the ground
floor of the Department of Transportation West Building, 1200 New
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays; or the Commander, U. S.
Coast Guard Sector Baltimore, 2401 Hawkins Point Road, Building 70,
Baltimore, Maryland, 21226-1791, between 8 a.m. and 3 p.m., Monday
through Friday, except Federal holidays. We have an agreement with the
Department of Transportation to use the Docket Management Facility.
Privacy Act
Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act, system of
records notice regarding our public dockets in the January 17, 2008
issue of the Federal Register (73 FR 3316).
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for one to the Docket Management Facility at the address under
ADDRESSES explaining why one would be beneficial. If we determine that
one would aid this rulemaking, we will hold one at a time and place
announced by a later notice in the Federal Register.
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 any delay encountered in this
regulation's effective date by publishing a NPRM would be contrary to
public interest. Immediate action is needed to mitigate the potential
safety hazards associated with ice in the navigable waterway to life
and property.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30
[[Page 8754]]
days after publication in the Federal Register. Due to the unexpected
nature and growth of ice formation in the Upper Chesapeake Bay and its
tributaries and the Chesapeake and Delaware (C & D) Canal, the safety
zone is necessary to protect life and property. Therefore a 30-day
notice is impracticable.
Background and Purpose
During a moderate or severe winter, frozen waterways present
numerous hazards to vessels. Ice in a waterway may hamper a vessel's
ability to maneuver, and could cause visual aids to navigation to be
submerged, destroyed or moved off station. Ice abrasions and ice
pressure could also compromise a vessel's watertight integrity, and
non-steel hulled vessels would be exposed to a greater risk of hull
breach.
When ice conditions develop to a point where vessel operations
become unsafe, it becomes necessary to impose operating restrictions to
ensure the safe navigation of vessels. A safety zone is a tool
available to the Captain of the Port (COTP) to restrict and manage
vessel movement when hazardous conditions exist. The COTP Baltimore is
establishing a safety zone within all navigable waters of the COTP
Baltimore zone that will restrict access to certain vessels meeting
certain conditions specified. Those vessels prohibited from entering
the safety zone will be notified via broadcast notice to mariners and
marine safety information bulletins.
Ice generally begins to form in the Upper Chesapeake Bay and its
tributaries, including the C & D Canal, in late December or early
January. During a moderate or severe winter, ice in navigable waters
can become a serious problem, requiring the use of federal, state and
private ice breaking resources. The Commander, Coast Guard Sector
Baltimore will use his COTP authority to promote vessel safety in ice-
congested waters and the continuation of waterborne commerce throughout
the cold weather months.
Ice fields in the Upper Chesapeake Bay and its tributaries move
with prevailing winds and currents. Heavy ice buildups can occur in the
C & D Canal, from Town Point Wharf to Reedy Point. Other areas that are
commonly affected by high volumes of ice are, the Elk River,
Susquehanna River, Patapsco River, Nanticoke River, Wicomico River,
Tangier Sound, Pocomoke River and Sound, and the Potomac River. Once
ice buildup begins it can affect the transit of large ocean-going
vessels. This regulation is intended to mitigate the threat ice in the
COTP Baltimore zone poses to the maritime public.
Discussion of Rule
A safety zone is being established encompassing the COTP Baltimore
Zone, as described in 33 CFR 3.25-15. The Captain of the PORT Baltimore
anticipates only having to enforce certain parts of the regulated area
at certain times. The purpose of this regulation is to promote maritime
safety, and to protect mariners transiting the area from the potential
hazards due to ice conditions that become a threat to navigation. The
COTP will notify the maritime community, via marine broadcasts, of the
location and thickness of the ice as well as the ability of vessels to
transit through the safety zone depending on the prevailing ice
conditions. Prevailing ice conditions will be categorized as Condition
One, Condition Two, or Condition Three.
Ice Condition One is an emergency condition in which ice has
largely covered the regulated area. Under these conditions, convoys may
be required and restrictions based on shaft horsepower and vessel
transit may be imposed by the COTP on certain vessels seeking to enter
the safety zone.
Ice Condition Two is an alert condition in which at least 2 inches
of ice begins to form in the regulated area. The COTP Baltimore may
impose restrictions, including but not limited to, those based on shaft
horsepower and hull type restrictions for certain vessels seeking to
enter the safety zone.
Ice Condition Three is a readiness condition in which weather
conditions are favorable for the formation of ice in the regulated
area. Daily reports for the Coast Guard Stations and commercial vessels
are monitored, and no limitations for vessels seeking to enter the zone
based on vessel traffic, hull type or shaft horsepower are anticipated.
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. Although this regulation prevents traffic
from transiting the COTP Baltimore Zone, the effect of this regulation
will not be significant because there is little vessel traffic
associated with recreational boating and commercial fishing during the
effective period.
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 of which
may be small entities: the owners or operators of vessels intending to
operate, transit or anchor in the regulated area, from January 17, 2009
until April 15, 2009. This safety zone will not have a significant
economic impact on a substantial number of small entities due to a lack
of seasonal vessel traffic associated with recreational boating and
commercial fishing during the effective period. Although the safety
zone will apply to the entire COTP Baltimore Zone, the Captain of the
PORT Baltimore anticipates only having to enforce certain parts of the
regulated area at certain times. Traffic will be allowed to pass
through the zone with the permission of the COTP Baltimore. Also, the
COTP will notify the maritime community, via marine broadcasts, of the
location and thickness of the ice, as well as the ability of vessels to
transit through the safety zone.
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
[[Page 8755]]
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 5100.1 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
under the Instruction that there are no factors in this case that would
limit the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (34)(g), of the Instruction, from further
environmental documentation. This rule establishes a safety zone.
An environmental analysis checklist and a categorical exclusion
determination will be 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.
0
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, 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
0
2. Add a new temporary Sec. 165.T05-0129 to read as follows:
Sec. 165.T05-0129 Safety zone; Baltimore Captain of the Port Zone.
(a) Regulated Area. The following area is a safety zone: The
navigable waters of the Captain of the Port Baltimore Zone, as
described in 33 CFR 3.25-15.
(b) Regulations. All persons are required to comply with the
general regulations governing safety zones in 33 CFR 165.23(d) of this
part.
(1) Vessels are prohibited from entering into or moving within the
safety zone unless they meet the requirements set forth by the Captain
of the Port (COTP) Baltimore for the prevailing ice conditions.
Requirements for entry during periods when the safety zone is enforced
will be described via Marine Safety Radio Broadcast on VHF-FM marine
band radio, channel 22A (157.1 MHZ). Requirements may include, but are
not limited to, the use of convoys, and restrictions on shaft
horsepower, and hull type restrictions, and will depend on the
prevailing conditions and vessel type.
(2) Persons desiring to transit in the safety zone not meeting the
requirements established by the COTP Baltimore must contact the COTP
Baltimore or his designated representative at telephone number 410-576-
2693 or on VHF-FM channel 16 (156.8 MHZ) to seek permission prior to
transiting the area. If permission is granted, all persons and vessels
shall comply with the instructions of the
[[Page 8756]]
COTP Baltimore or his designated representative.
(3) The Coast Guard vessels enforcing this safety zone can be
contacted on VHF-FM marine band radio channel 16 (156.8 MHZ). Upon
being hailed by a U.S. Coast Guard vessel, or other Federal, State, or
local agency vessel, by siren, radio, flashing light, or other means,
the operator of a vessel shall proceed as directed. The COTP Baltimore
and his designated representatives can be contacted at telephone number
410-576-2693.
(4) The COTP Baltimore or his designated representative will notify
the public of any changes in the status of this safety zone by Marine
Safety Radio Broadcast on VHF-FM marine band radio channel 22A (157.1
MHZ).
(d) Definitions. As used in this section:
Captain of the Port Baltimore means the Commander, U.S. Coast Guard
Sector Baltimore, Maryland.
Designated representative means any Coast Guard commissioned,
warrant, or petty officer who has been authorized by the Captain of the
Port Baltimore to assist in enforcing the safety zone described in
paragraph (b) of this section.
(e) Enforcement. The U.S. Coast Guard may be assisted in the patrol
and enforcement of the zones by Federal, State and local agencies.
(f) Enforcement period. This section will be enforced from January
17, 2009 until April 15, 2009.
Dated: January 17, 2009.
Austin J. Gould,
Commander, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland,
Acting.
[FR Doc. E9-4067 Filed 2-25-09; 8:45 am]
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