[Federal Register Volume 76, Number 74 (Monday, April 18, 2011)]
[Rules and Regulations]
[Pages 21633-21636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9255]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 110
[Docket No. USCG-2008-0852]
RIN 1625-AA01
Disestablishing Special Anchorage Area 2; Ashley River,
Charleston, SC
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is disestablishing the special anchorage,
referred to as Ashley River Anchorage 2, in Charleston, South Carolina.
The removal of Ashley River Anchorage 2 would accommodate an expansion
of the Ripley Light Yacht Club.
DATES: This rule is effective July 18, 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-2008-0852 and are available online by going to
http://www.regulations.gov, inserting USCG-2008-0852 in the ``Keyword''
box, and then clicking ``Search.'' This material is 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 rule,
call or e-mail Lieutenant Julie Blanchfield, Sector Charleston Office
of Waterways Management, Coast Guard; telephone 843-740-3184, e-mail
[email protected]. If you have questions on viewing the
docket, call Renee V. Wright, Program Manager, Docket Operations,
telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On June 5, 2009, we published a notice of proposed rulemaking
(NPRM) entitled Disestablishing Special Anchorage Area 2; Ashley River,
Charleston, SC in the Federal Register (74 FR 27000). We received six
submissions, with a total of 24 comments on the proposed rule. No
public meetings were requested, and a public meeting was not held.
Basis and Purpose
Under 33 U.S.C. 471, 1221 through 1236, 2030, 2035, and 2071; 33
CFR 1.05-1; and the Department of Homeland Security Delegation No.
0170.1, the Coast Guard may establish special anchorage areas. A
special anchorage area is a designated water area within which vessels
sixty-five feet (20 meters) or less in length are not required to: (1)
Sound signals required by Rule 35 of the Inland Navigation Rules (33
U.S.C. 2035); or (2) exhibit the white anchor lights or shapes required
by Rule 30 of the Inland Navigation Rules (33 U.S.C. 2030).
Ashley River Properties and the Ripley Light Yacht Club submitted a
permit application to the Army Corps of Engineers to construct an
additional 200 slips for pleasure craft at the Ripley Light Yacht Club
in Charleston, South Carolina. The proposed expansion would encompass
most of the area currently designated as Ashley River Anchorage 2.
Removal of Ashley River Anchorage 2 would be necessary before the
Ripley Light Yacht Club expansion can commence. There are, however,
several other locations where vessels currently anchored at Ashley
River Anchorage 2 may relocate.
Background
In 1983, the Port of Charleston had no designated special anchorage
areas. Subsequently, two anchorage areas were designated. However, no
distinction was made between anchorage for commercial and recreational
vessels; either type of vessel could anchor in the two designated
anchorages. These two anchorage areas did not provide a sufficient area
for large commercial vessels, and they did not prevent both large
commercial vessels and small recreational vessels from competing for
the same anchorage grounds.
In 1984, the Coast Guard published a final rule (49 FR 26587)
establishing the four currently designated commercial anchorage areas
in the Port of Charleston under 33 CFR 110.173. The Coast Guard also
established a special anchorage area adjacent to the Charleston
Peninsula on the Ashley River. This special anchorage area on the
Ashley River existed until the Coast Guard issued a final rule in 1996
(61 FR 40993) converting the special anchorage area into two special
anchorage areas: Ashley River Anchorage 1 and Ashley River Anchorage 2.
The special anchorage area was converted to accommodate an expansion to
the George M. Lockwood Municipal Marina, currently known as The City
Marina. Ashley River Anchorage 2 is the smaller of the two special
anchorage areas established in 1996.
In 2008, Ashley River Properties and the Ripley Light Yacht Club
submitted a permit to the Army Corps of Engineers to construct 200
additional boat slips at the Ripley Light Yacht Club. The proposed
expansion encompasses most of the area currently designated as Ashley
River Anchorage 2. The Ripley Light Yacht Club expansion will
accommodate significantly more vessels than can currently safely anchor
in Ashley River Anchorage 2.
The Ripley Light Yacht Club intends to reserve several of the 200
additional slips for transient recreational boaters. Additionally,
transient slips are available at the Ripley Light Yacht Club, The City
Marina, and Anchorage 1 remains a viable and convenient location for
recreational vessels to anchor. Finally, recreational vessels may
anchor in other areas of the Port of Charleston so long as they comply
with applicable Navigation Rules and do not pose a navigational hazard
while anchored.
Discussion of Comments and Changes
The Coast Guard received six submissions, containing a total of 24
comments, regarding the NPRM.
Abandoned and Sunken Vessels
One comment stated that due to the considerable amount of abandoned
and sunken vessels within the larger remaining anchorage, Ashley River
Anchorage 1 will not be able to accommodate vessels currently anchored
in Ashley River Anchorage 2. Three comments recommended Ashley River
Anchorage 2 not be disestablished until abandoned and sunken vessels in
the two special anchorage areas were removed. The Coast Guard
understands that Ashley River Properties will remove all abandoned and
sunken vessels in both special anchorage areas prior to commencing the
Ripley Light Yacht Club expansion. The removal of abandoned and sunken
vessels would provide additional space in Ashley River Anchorage 1.
After abandoned and sunken vessels have been removed from Ashley River
Anchorage 1, Ashley River Anchorage 1 will be able to accommodate all
of the vessels currently in Ashley River Anchorage 2. Additionally,
this rule does not require vessels to leave the location where they are
currently anchored. This rule merely
[[Page 21634]]
disestablishes Ashley River Anchorage 2. Vessels may still remain
anchored in their current location so long as they comply with
applicable Navigation Rules and do not pose a navigational hazard while
anchored. Therefore, the Coast Guard made no changes to the final rule
based on these comments.
One comment suggested that by disestablishing Ashley River
Anchorage 2, the Coast Guard would be encouraging the abandonment of
vessels in alternate locations. The Coast Guard does not establish
special anchorage areas to facilitate the abandonment of vessels, nor
should special anchorage areas be used in such a manner. Additionally,
there are several other locations where vessels currently anchored at
Ashley River Anchorage 2 may relocate, including Ashley River Anchorage
1. Therefore, the Coast Guard made no changes to the final rule based
on this comment.
Two comments expressed concern that: (1) Some persons who currently
anchor their vessels at Ashley River Anchorage 2 may not be able to
afford to pay for a slip rental in the Port of Charleston; (2) there
are few inexpensive places in the Charleston area to anchor; and (3)
Ashley River Anchorages 1 and 2 should be protected. The Coast Guard is
not reducing the number of free or low-cost anchoring locations by
removing Ashley River Anchorage 2. The Coast Guard understands that, as
part of the Ripley Light Yacht Club expansion project, Ashley River
Properties will be removing abandoned and sunken vessels from both
special anchorage areas. Removal of these abandoned and sunken vessels
in Ashley River Anchorage 1 will provide additional space for those
vessels currently anchored at Ashley River Anchorage 2. Moreover,
vessels may still anchor in other areas in the Port of Charleston at no
cost so long as they comply with applicable Navigation Rules and do not
pose a navigational hazard while anchored. Therefore, the Coast Guard
does not believe that disestablishing Ashley River Anchorage 2 will
prevent mariners from anchoring their boats nearby. There are several
nearby locations where vessels currently anchored in Ashley River
Anchorage 2 may relocate, including Ashley River Anchorage 1.
Therefore, the Coast Guard made no changes to the final rule based on
these comments.
One comment stated that Ashley River Anchorage 1 is much more
exposed to prevailing wind and weather than Ashley River Anchorage 2
and, therefore, is more suitable to larger vessels than Ashley River
Anchorage 2. The Coast Guard disagrees with this comment. Ashley River
Anchorage 1 is not much more exposed to prevailing wind and weather
than Ashley River Anchorage 2. In fact, the two anchorages are within
200 yards of one another. Therefore, the Coast Guard made no changes to
the final rule based on this comment.
Two comments stated that the area between Ripley Light Yacht Club
and the Ashley River Marina will become overly congested by vessel
traffic because of the Ripley Light Club expansion. The Coast Guard
believes that disestablishing Ashley River Anchorage 2 will not
increase vessel congestion in this area. The removal of Ashley River
Anchorage 2 and the abandoned and sunken vessels contained in the
anchorage will actually increase space for vessels to maneuver.
Therefore, the Coast Guard made no changes to the final rule based on
these comments.
Ripley Light Yacht Club Marina Expansion
Two comments stated that because the proposed expansion extends
into the anchorage, the construction permit should have been denied.
The Coast Guard does not have authority to approve or disapprove the
Ripley Light Club expansion, and the Ripley Light Yacht Club marina
expansion permitting process is not within the scope of this final
rule. Comments regarding the issuance of the Ripley Light Yacht Club
marina expansion permit should be submitted to Federal, State, and
local agencies handling the permit application, including the Army
Corps of Engineers and the South Carolina Office of Coastal Resource
Management. Therefore, the Coast Guard made no changes to the final
rule based on these comments.
One comment stated that the Ripley Light Yacht Club is not similar
to other yacht clubs and is more like a business. The name and business
practices of the Ripley Light Yacht Club are outside the scope of this
rulemaking. Therefore, the Coast Guard made no changes to the final
rule based on this comment.
One comment stated that the proposed rule benefits the private
financial gain of the developer at the expense of numerous small
entities. The Coast Guard disagrees that disestablishing Ashley River
Anchorage 2 would impose costs on small entities. There are several
nearby locations where vessels currently anchored in Ashley River
Anchorage 2 may relocate at no additional cost.
One comment stated that the developer has no riparian rights to the
land beneath Ashley River Anchorage 2, and that the proposed rule would
give Federal property to a private entity. This comment is outside the
scope of the final rule. By disestablishing Ashley River Anchorage 2,
the Coast Guard is not conferring any Federal property rights on any
private entity. Therefore, the Coast Guard made no changes to the final
rule based on this comment.
One comment stated that an environmental study should be conducted
to analyze the environmental effects of the marina expansion. While the
permit process for the marina expansion may require an environmental
review, the Coast Guard has determined that the disestablishment of the
Ashley River Anchorage 2 is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment under the National Environmental Policy Act of 1969 (42
U.S.C. 4321-4370f). The Environment section below discusses this
categorical exclusion determination in detail. Therefore, the Coast
Guard made no changes to the final rule based on these comments.
One comment stated that under the Background and Purpose and
Discussion of Proposed Rule sections of the NPRM, the Coast Guard
indicated that the proposed marina expansion will ``extend into''
Ashley River Anchorage 2, when the expansion actually completely
encompasses the existing anchorage. The Coast Guard disagrees with the
comment that the expansion will completely encompass Ashley River
Anchorage 2. However, the Coast Guard has amended the preamble to state
that the expansion will ``encompass most of the area currently
designated as Ashley River Anchorage 2.''
Local Enforcement of Anchorage
One comment suggested the creation of an association of interested
citizens that could monitor and assist in maintaining Ashley River
Anchorage 2. This comment is outside the scope of the regulation.
Therefore, the Coast Guard made no changes to the final rule based on
this comment.
Two comments recommended that jurisdiction over Ashley River
Anchorage 1 and 2 should be turned over to the local government to
establish and enforce. To the extent this comment suggests the creation
of local ordinances, the suggestion is outside the Coast Guard's
authority, and the Coast Guard does not believe this recommendation
affects the disestablishment of Ashley River Anchorage 2. Additionally,
a proposal to disestablish Ashley River Anchorage
[[Page 21635]]
1 would require a separate rulemaking. At this time, the Coast Guard
does not have any intention of disestablishing Ashley River Anchorage
1. Therefore, the Coast Guard made no changes to the final rule based
on these comments.
Relocation of the Ashley River Channel
Two comments stated that The City Marina may attempt to have the
existing channel relocated westward due to insufficient water depths at
The City Marina. As such, The City Marina will soon be submitting a
permit that would affect both anchorages. These commenters recommended
the Coast Guard abandon this rulemaking until The City Marina submits
the permit. The Coast Guard does not believe the proposal by The City
Marina should have any impact on disestablishing Ashley River Anchorage
2. While relocation of the channel could impact the location of part of
Ashley River Anchorage 1, it should not reduce the overall anchorage
space. In any event, the Coast Guard will consider proposals affecting
Ashley River Anchorage 1 separately. Therefore, the Coast Guard made no
changes to the final rule based on these comments.
Notice and Comments Regarding the Proposed Rule
One comment stated that Marine Safety Information Bulletin (MSIB)
31-09, announcing the proposed rule, was not distributed to every
vessel currently moored in Ashley River Anchorage 2 until July 10,
2009. The Coast Guard provided notice of the NPRM by several means.
First, on June 1, 2009, the Coast Guard posted MSIB 31-09 on the
Internet at http://homeport.uscg.mil. Second, on June 1, 2009, the
Coast Guard e-mailed MSIB 31-09 to subscribers of a Coast Guard
sponsored e-mail list server, which is available for free to the public
at http://cgls.uscg.mil/mailman/listinfo/secchas-msib. Third, the NPRM
was published in the Federal Register on June 5, 2009 (74 FR 27000).
Fourth, the Coast Guard distributed MSIB 31-09 to all vessels in Ashley
River Anchorage 2. Such notification efforts exceed standard outreach
efforts for Federal Register publications and satisfy the notice
requirement set forth in the Administrative Procedure Act (5 U.S.C.
553).
One comment requested that the Coast Guard consider extending the
August 4, 2009 deadline for public comments. The Coast Guard did not
receive this request to extend the comment period until August 3, 2009,
the day prior to the end of the comment period, and did not believe it
necessary to extend the comment period.
After considering all the comments, the Coast Guard made no changes
to the proposed rule.
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.
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, 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 economic impact of this rule is not significant because of the
following reasons: (1) The limited geographic area impacted by
disestablishing Ashley River Anchorage 2 will not restrict or otherwise
significantly impact the movement or routine operation of a large
number of commercial or recreational vessels in the Ashley River; and
(2) vessels currently located in Ashley River Anchorage 2 may relocate
to Ashley River Anchorage 1, a larger anchorage nearby, or other areas
of the Port of Charleston, where they may anchor at no cost, so long as
they comply with applicable Navigation Rules and do not pose a
navigational hazard while anchored.
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 or operators of recreational vessels
intending to anchor in the Port of Charleston, Ripley Light Yacht Club,
and The City Marina. This rule would not have a significant impact on a
substantial number of small entities for the following reasons: (1)
Ashley River Anchorage 2 is small and cannot accommodate many vessels;
(2) recreational vessels that currently anchor at Ashley River
Anchorage 2 may anchor at many other nearby locations, including Ashley
River Anchorage 1, Ripley Light Yacht Club, or The City Marina, all of
which are located nearby; and (3) after the expansion is completed, the
Ripley Light Yacht Club will be able to accommodate significantly more
transient vessels than could fit in Ashley River Anchorage 2.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM 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
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
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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 cause 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 that do not individually or
cumulatively have a significant effect on the human environment. This
rule is categorically excluded, under figure 2-1, paragraph (34)(f), of
the Instruction, because it involves disestablishing a special
anchorage area. Under figure 2-1, paragraph (34)(f), 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 110
Anchorage grounds.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 110 as follows:
PART 110--ANCHORAGE REGULATIONS
0
1. The authority citation for part 110 continues to read as follows:
Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071;
33 CFR 1.05-1; Department of Homeland Security Delegation No.
0170.1.
0
2. Revise Sec. 110.72d to read as follows:
Sec. 110.72d Ashley River, SC.
All waters on the southwest portion of the Ashley River encompassed
within the following points: beginning at 32[deg]46'42.7'' N,
79[deg]57'19.3'' W; thence southwest to 32[deg]46'38.0'' N,
79[deg]57'24.0'' W; thence southeast to 32[deg]46'32.0'' N,
79[deg]57'15.5'' W; thence southeast to 32[deg]46'29.0'' N,
79[deg]57'00.9'' W; thence back to origin following the southwest
boundary of the Ashley River Channel. All coordinates are North
American Datum 1983.
Dated: March 10, 2011.
William D. Baumgartner,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard
District.
[FR Doc. 2011-9255 Filed 4-15-11; 8:45 am]
BILLING CODE 9110-04-P