Safety Zones; Ice Covered Waterways in the Fifth Coast Guard District

AGENCY:

Coast Guard, DHS.

ACTION:

Supplemental notice of proposed rulemaking.

SUMMARY:

On July 9, 2015, the Coast Guard published a notice of proposed rulemaking (NPRM) to establish a regulated navigation area (RNA) on the navigable waters of the Fifth Coast Guard District to allow the Coast Guard to impose and enforce restrictions on vessels operating within the RNA where a threat to navigation exists due to ice covered waterways. Based on consideration of the comments received in response to that NPRM and further analysis, the Coast Guard is now proposing to establish 11 safety zones on certain navigable waters of the Fifth Coast Guard District instead of 1 RNA. This action is necessary to promote navigational safety, provide for the safety of life and property, and facilitate the reasonable demands of commerce when navigation safety is threatened due to ice covered waterways. We invite your comments on this proposed rulemaking.

DATES:

Comments and related material must be received by the Coast Guard on or before April 10, 2017.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, type USCG-2015-0051 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email LCDR Tiffany Johnson, Fifth Coast Guard District, U.S. Coast Guard; telephone 757-398-6516, email tiffany.a.johnson@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

RNA Regulated Navigation Area

SNPRM Supplemental Notice of Proposed Rulemaking

§ Section

U.S.C. United States Code

II. Background, Purpose, and Legal Basis

A. Regulatory History and Information

The purpose of this proposed regulation is to mitigate the potential threat ice poses to the maritime public in the Fifth Coast Guard District by implementing control measures on vessels operating in certain ice-covered waterways. During an average or severe winter, the presence of ice in waterways presents numerous hazards to vessels. Such hazards include vessels becoming beset or dragged off course, sinking or grounding and creating hazards to navigation. The presence of ice in a waterway may hamper a vessel's ability to maneuver and impose additional loads on a vessel's hull, propulsion system and appendages. Blockage of sea suctions can cause the main engine cooling system to overheat, requiring reduced power to be used or the engine to be shut down completely. Visual aids to navigation may become submerged, destroyed, or moved off station, potentially misleading the vessel operator to unsafe waters. Vessels operating in these hazardous conditions could introduce a clear and present danger to the maritime public and environment.

B. Discussion of Comments on NPRM and Changes

On July 9, 2015, the Coast Guard published an NPRM titled Regulated Navigation Area; Ice Covered Waterways in the Fifth Coast Guard District (80 FR 39403). The purpose of that proposed regulated navigation area (RNA) was to mitigate the aforementioned potential threat ice poses to the maritime public in the Fifth Coast Guard District by implementing control measures on vessels of certain characteristics. We invited comments on our proposed regulatory action related to that RNA. During the comment period that ended October 7, 2015, we received a total of six comments coming from six submitters. No public meeting was requested, and none was held.

Five comments assert that there is no need for this rule because existing Coast Guard methods for ensuring vessel safety are adequate given the practices they have witnessed while operating in the Fifth Coast Guard District in the past. The Coast Guard disagrees that no rule is needed to implement and enforce restrictions on vessels operating where a threat to navigation exists due to ice covered waterways. In the past, Captains of the Ports (COTP) in the Fifth Coast Guard District ensured navigation and vessel safety in ice-covered waterways by establishing temporary safety zones or using other COTP authorities.

This proposed rule would establish 11 permanent safety zones and eliminate the need for the Coast Guard to publish several temporary final rules throughout future ice seasons. The safety zones proposed in this SNPRM are the most appropriate from a regulatory perspective and will ensure consistency throughout the Fifth Coast Guard District. While the regulatory method may be different, the effect on the regulated public is largely the same in that there will be restrictions on navigating based upon prevailing ice conditions and vessel hull, propulsion, sea suction and appendage characteristics.

One comment specifically stated that the Coast Guard already has sufficient authority to control vessel movements under 33 CFR part 6, and therefore the proposed RNA is not needed. The Coast Guard finds relying solely on the authority provided by 33 CFR part 6 is not feasible when ice presents hazardous conditions. Sole reliance on this authority involving the protection and security of vessels, harbors, and waterfront facilities would require the COTP to take individualized action against every vessel desiring to operate in the area, which is counter to public interest due to the significant amount of time it would take to issue and administer an effective amount of orders.

Two comments noted that the decision to transit an ice-covered waterway is best made by an operator that is aware of the prevalent ice conditions and the proposed RNA is not needed. In addition to the aforementioned reasons why this rule is needed, the COTP considers the holistic risk on the waterway when restricting maritime traffic due to ice-related hazards, which is not the responsibility of any individual vessel or class of vessels. In fact, despite vessel restrictions being in place in March of 2015, two commercial vessels operating in the Fifth Coast Guard District during that time were negatively affected by ice, resulting in an emergency condition onboard that presented a risk to other operators and the surrounding marine environment. This SNPRM proposed rule would afford vessels operators that believe they can safety operate in the prevailing conditions the opportunity to request permission from the COTP to deviate from the restrictions.

Three comments expressed concern regarding the burden this regulation would place on the Coast Guard. The safety zones established by this proposed rule would eliminate the need for the Coast Guard to publish several temporary final rules to establish safety zones throughout future periods of ice accumulation. The Coast Guard also concluded that the notification activities associated with this rule do not place any additional burden on the Coast Guard when compared with implementing other COTP control measures. Furthermore, this regulation would be a permanent rule, would provide for public participation in the rulemaking process, and would establish uniform ice condition control measures to be implemented in the Fifth Coast Guard District to facilitate safe navigation.

One comment received posited the proposed RNA would result in undue economic hardship for commercial vessels. The Coast Guard weighs many factors in its decision to restrict vessel operations in a waterway, specifically focused on ensuring the safe, secure, and environmentally sound transportation of people, goods, and material by water. The Coast Guard has and will continue to use all available resources to safely and efficiently monitor the conditions of the designated waters of the safety zones to minimize impact to waterway users.

Two comments were received that the geographic area defined in the NPRM would be difficult for the Coast Guard to implement or enforce due its size. As stated in this SNPRM, the proposed regulated area has been delineated into 11 safety zones rather than 1 RNA. The cognizant COTPs enforce a wide array of control measures in these same geographic areas.

An anonymous commenter focused on North Carolina waters in the Fifth Coast Guard District. That person's comment recommended that regulators consider inland ponds, streams, marshes, rivers, lakes, reservoirs, and other waters, and concluded that the rule proposed in the NPRM—which would cover all navigable waters in the Fifth Coast Guard District, including those in North Carolina—appears redundant, and difficult to interpret or enforce outside of major seaport areas in North Carolina. We were unable to obtain clarification from this anonymous commenter regarding the desired consideration to be applied to the various waters mentioned, but we believe this SNPRM, which does not propose to regulate any North Carolina waters, addresses this commenter's concerns.

Upon review of the comments and further analysis, the Coast Guard is proposing to change the regulatory method by which control measures would be implemented from 1 regulated navigation area to 11 safety zones throughout the navigable waters of the Fifth Coast Guard District. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

III. Discussion of SNPRM Proposed Rule

This proposed rule would establish 11 safety zones on the navigable waters of the Fifth Coast Guard District. We have placed an illustration of these safety zones in the docket for this rulemaking. This proposed rule would allow the Coast Guard to impose and enforce restrictions on vessels operating within the safety zones where a threat to navigation exists due to ice covered waterways. This action is necessary to promote navigational safety, provide for the safety of life and property, and facilitate the reasonable demands of commerce. Vessels transiting in protected waters, such as within a marina, harbor or basin, for the purposes of facilitating icebreaking operations and protecting infrastructure and property would be exempt from the controls. Vessels capable of operating in the prevailing ice condition outside of protected waters may be allowed to operate within the safety zones if granted permission by the cognizant COTP.

Under this proposed rule, a vessel would need permission from the cognizant COTP or the District Commander to enter or continue transiting a zone if, when approaching or after entering a safety zone, the vessel encounters ice of a given thickness, unless the COTP or the District Commander has set an ice condition for the zone and the vessel meets the associated requirements to transit the zone. Here is a description of the three ice conditions and vessels requirements to transit. Under:

• Condition One, when 30 percent of a zone is reported covered with ice 1 to 3 inches thick, only steel hull vessels would be allowed to transit the zone;
• Condition Two, when 30 to 90 percent of a zone is reported covered with ice 3 to 9 inches thick, only steel hull vessels with a 1,500 minimum shaft horsepower and a main engine cooling system design that prevents blockage from ice would be allowed to transit the zone; and
• Condition Three, when 90 percent or more of a zone is reported covered with ice 9 inches thick, only steel hull vessels with a 1,500 minimum shaft horsepower and a main engine cooling system design that prevents blockage from ice in a vessel convoy would be allowed to transit the zone.

For non-steel-hull vessels, entry into or continuing to transit the zone would be prohibited without permission from the cognizant COTP or District Commander if, when approaching the zone or after entering the safety zone, the vessel encounters ice of 1/2-inch or more in thickness. When this thickness of ice is reached in a zone, non-steel hulled vessels moored or docked in the zone need not exit the zone, but these vessels may not transit the zone without permission of the cognizant COTP or District Commander. There would be an exemption for vessels that need to transit in protected waters, such as within a marina, harbor, or basin, to facilitate icebreaking operations and protect infrastructure and property. The regulatory text we are proposing appears at the end of this document.

IV. Regulatory Analyses

We developed this rule after considering numerous statutes and executive related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

Although this proposed regulation could limit or prevent marine traffic from transiting certain waterways in the Fifth Coast Guard District, the effect of this regulation would not be significant because there is little vessel traffic associated with recreational boating and commercial fishing during enforcement periods. The Coast Guard anticipates only having to implement control measures for limited durations of time. The cognizant COTP will make notifications of the regulated areas to the maritime public via Broadcast Notice to Mariners so mariners can adjust their plans accordingly. Moreover, vessel traffic capable of operating in such conditions will be allowed to enter into or transit within the safety zones as specified by the cognizant COTP.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the regulated areas may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

C. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

E. 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 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

F. Environment

We have analyzed this proposed 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 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves establishing safety zones. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

G. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

V. Public Participation and Request for Comments

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov,, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this SNPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Security measures
• Waterways

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.550 to read as follows: