[Federal Register Volume 74, Number 37 (Thursday, February 26, 2009)]
[Rules and Regulations]
[Pages 8753-8756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4067]


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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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