[Federal Register Volume 70, Number 24 (Monday, February 7, 2005)]
[Rules and Regulations]
[Pages 6349-6351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2218]



[[Page 6349]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD05-05-008]
RIN 1625-AA00


Safety Zone; Upper Chesapeake Bay and Its Tributaries and the C & 
D Canal, Maryland, Virginia, and Washington, DC

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule; 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. This safety 
zone is necessary to protect mariners from the hazards associated with 
ice. The temporary safety zone restricts vessels from transiting the 
zone during ice season, unless authorized by the Captain of the Port 
Baltimore, Maryland or designated representative through the issuance 
of broadcast notice to mariners and marine safety information 
bulletins.

DATES: This rule is effective from January 24, 2005 until April 15, 
2005. Comments must be received on or before March 9, 2005.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD05-05-008 and are available for 
inspection or copying at Commander, Coast Guard Activities Baltimore, 
2401 Hawkins Point Road, Baltimore, Maryland 21226-1791, between 8 a.m. 
and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Ronald L. Houck, Coast Guard 
Activities Baltimore, at (410) 576-2674.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(B) and (d)(3), the Coast Guard finds 
that good cause exists for not publishing a NPRM and for making this 
regulation effective less than 30 days after publication in the Federal 
Register. While formation of ice generally occurs in the winter months, 
predicting when ice will begin to form, where it will be located and 
the thickness of the ice is difficult and depends on the weather 
conditions. Ice has just begun to form in the area of this safety zone. 
Publishing a NPRM and delaying its effective date would be contrary to 
public interest, since immediate action is needed to protect mariners 
against potential hazards associated with ice and to ensure the safety 
of the environment on the Upper Chesapeake Bay and its tributaries.

Request for Comments

    Although we did not publish a notice of proposed rulemaking, we 
encourage you to participate in this rulemaking by submitting comments 
and related materials.
    If you do so, please include your name and address, identify the 
docket number for this rulemaking (CGD05-05-008), indicate the specific 
section of this document to which each comment applies, and give the 
reason for each comment. Please submit all comments and related 
material in an unbound format, no larger than 8\1/2\ by 11 inches, 
suitable for copying. If you would like to know they reached us, please 
enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period. 
We may change this rule in view of them.

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 within the COTP 
Baltimore zone, which will restrict access to only those vessels 
meeting conditions specified in broadcast notice to mariners and marine 
safety information bulletins.
    Ice generally begins to form in the Upper Chesapeake Bay and its 
tributaries, including the Chesapeake and Delaware (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 Activities Baltimore will use its COTP authority to promote the 
safe transit of vessels through ice-congested waters and the 
continuation of waterborne commerce throughout the winter season.
    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 build up begins it can affect the transit of large ocean-going 
vessels.
    Ice reports over the last several years have varied greatly on the 
Upper Chesapeake Bay and its tributaries. Historically, ice has been 
reported as NEW, FAST OR PACK ICE. The percentage of ice covering the 
river has been reported any where from 10% to 100%. The thickness has 
been reported any where from \1/2\'' to 18'' thick.

Discussion of Rule

    The purpose of this regulation is to promote maritime safety, and 
to protect the environment and mariners transiting the area from the 
potential hazards due to ice conditions that become a threat to 
navigation. This rule establishes a safety zone encompassing all waters 
of the COTP Baltimore zone. 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. Mariners allowed to travel through the safety zone with the 
permission of the COTP must maintain a minimum safe speed, in 
accordance with the Navigation Rules as seen in 33 CFR Chapter I, 
Subchapters D and E.
    Ice Condition One means the emergency condition in which ice has 
largely covered the upper Chesapeake Bay and its tributaries, and the C 
& D Canal. Convoys are required and restrictions to shaft horsepower 
and vessel transit are imposed.
    Ice Condition Two means the alert condition in which at least 2 
inches of ice begins to form in the Upper Chesapeake Bay and its 
tributaries, and the C & D Canal. The COTP Baltimore may impose 
restrictions, including but not limited to, shaft horsepower and hull 
type restrictions.
    Ice Condition Three means the readiness condition in which weather 
conditions are favorable for the formation of ice in the navigable 
waters of the Upper Chesapeake Bay and its tributaries, and the C & D 
Canal. Daily reports for the Coast Guard Stations and commercial 
vessels are monitored. (No

[[Page 6350]]

limitations on vessel traffic, hull type or shaft horsepower).

Regulatory Evaluation

    This temporary rule 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. The Office of Management and Budget has not reviewed it 
under that Order. It is not significant under the regulatory policies 
and procedures of the Department of Homeland Security (DHS).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under the regulatory policies and procedures 
of DHS is unnecessary.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
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.
    This rule will have virtually no impact on any small entities. This 
rule does not require a general notice of proposed rulemaking and, 
therefore, it is exempt from the requirement of the Regulatory 
Flexibility Act. Although this rule is exempt, we have reviewed it for 
potential economic impact on small entities.
    The Coast Guard certifies under section 605(b) of the Regulatory 
Flexibility Act (5 U.S.C 605(b)) that this rule will not have a 
significant impact on a substantial number of small entities.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking process.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-743-3247).

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 this rule 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 does not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule does 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 concern 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. We invite your 
comments on how this rule might impact tribal governments, even if that 
impact may not constitute a ``tribal implication'' under the Order.

Energy Effects

    We have analyzed this rule under Executive Order 12211, 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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs 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 Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that, under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.1D, this rule is categorically excluded from further 
environmental documentation. A ``Categorical Exclusion Determination'' 
is available in the docket where indicated under ADDRESSES.

[[Page 6351]]

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping 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 NAVIATION 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; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1

0
2. Add temporary Sec.  165.T05-008 to read as follows:


Sec.  165.T05-008  Safety zone; Upper Chesapeake Bay and its 
tributaries and the C & D Canal, MD, VA and Washington, DC.

    (a) Location. The following area is a temporary safety zone: All 
navigable waters of the Captain of the Port, Baltimore zone.
    (b) Regulations. All persons are required to comply with the 
general regulations governing safety zones in 33 CFR 165.23 of this 
part.
    (1) All vessel traffic is prohibited in the safety zone unless they 
meet the requirements set forth by the Captain of the Port by Marine 
Safety Radio Broadcast on VHF-FM marine band radio, channel 22A (157.1 
MHZ).
    (2) All Coast Guard assets enforcing this safety zone can be 
contacted on VHF marine band radio, channels 13 and 16. The Captain of 
the Port can be contacted at (410) 576-2693.
    (3) All persons desiring to transit through the safety zone must 
contact the Captain of the Port at telephone number (410) 576-2693 or 
on VHF channel 13 or 16 to seek permission prior to transiting the 
area. If permission is granted, all persons and vessels shall comply 
with the instructions of the Captain of the Port Baltimore, MD or 
designated representative.
    (4) The Captain of the Port 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).
    (5) Mariners granted permission to transit the safety zone must 
maintain the minimum safe speed necessary to maintain navigation as per 
33 CFR Chapter I, Subchapters D and E.
    (c) Definitions.
    Captain of the Port means the Commander, Coast Guard Activities 
Baltimore or any Coast Guard commissioned warrant or petty officer who 
has been authorized by the Captain of the Port to act on his behalf.
    Ice Condition One means the emergency condition in which ice has 
largely covered the Upper Chesapeake Bay and its tributaries, and the C 
& D Canal. Convoys are required and restrictions to shaft horsepower 
and vessel transit are imposed.
    Ice Condition Two means the alert condition in which at least 2 
inches of ice begins to form in the Upper Chesapeake Bay and its 
tributaries, and the C & D Canal. The COTP Baltimore may impose 
restrictions, including but not limited to, shaft horsepower and hull 
type restrictions.
    Ice Condition Three means the readiness condition in which weather 
conditions are favorable for the formation of ice in the navigable 
waters of the Upper Chesapeake Bay and its tributaries, including the C 
& D Canal. Daily reports for the Coast Guard Stations and commercial 
vessels are monitored. (No limitations on vessel traffic, hull type or 
shaft horsepower).
    (d) Effective period. This section is effective from January 24, 
2005 until April 15, 2005.

    Dated: January 24, 2005.
Curtis A. Springer,
Captain, U.S. Coast Guard, Captain of the Port, Baltimore, Maryland.
[FR Doc. 05-2218 Filed 2-4-05; 8:45 am]
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