[Federal Register Volume 59, Number 67 (Thursday, April 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8373]


[[Page Unknown]]

[Federal Register: April 7, 1994]


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DEPARTMENT OF TRANSPORTATION
33 CFR Part 162

[CGD09-94-004]

 

Temporary Amendment to Inland Waterways Navigation Regulations 
Establishing Speed Limits on Connecting Waters From Lake Huron to Lake 
Erie

AGENCY: Coast Guard, DOT.

ACTION: Temporary final rule; request for comments.

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SUMMARY: The Commander of the Ninth Coast Guard District, in 
cooperation with Canadian authorities, is renewing, with minor changes, 
a temporary, trial regulation previously in effect during the 1993 
navigation season. This temporary regulation, as before, amends the 
speed limits on connecting waters from Lake Huron to Lake Erie. The 
normal speed limits in this area are determined in large part by 
concerns about wake damage. However, lesser wakes are created by 
nondisplacement power vessels and it appears that the speed limits may 
unnecessarily impede their passage. The temporary regulation allows 
nondisplacement power vessels, less than 100 gross tons, to exceed the 
normal speed limits subject to certain restrictions. Generally, the 
minor changes in this version of the temporary regulation (in 
comparison to the previous version of the temporary regulation) place 
more restrictions on the use of the higher speeds by the operators of 
the nondisplacement vessels in order to better ensure safe, effectively 
regulated operations. The purpose of this temporary regulation, as 
before, is to test the feasibility and safety of the operation of 
nondisplacement vessels in the connecting waters from Lake Huron to 
Lake Erie. During this period of continued trial, the Commander of the 
Ninth Coast Guard District invites further public comment on this 
regulation or future versions thereof for the purpose of either 
amendments to this temporary regulation or for the purpose of 
considering a permanent change to the standing regulations.

DATES: This regulation is effective at 12:01 a.m. on April 1, 1994 and 
terminates at 12 midnight on November 30, 1994. Comments on this trial 
during the 1994 navigation season must be received on or before October 
31, 1994 in order to be considered in the drafting of a proposal for 
permanent change to the standing regulations which the Commander of the 
Ninth Coast Guard District may submit to the Commandant of the Coast 
Guard in the fall of 1994.

ADDRESSES: Comments and supporting materials should be mailed or 
delivered to the Chief of the Case Management & Port Safety Section, 
Ninth Coast Guard District, room 2069, 1240 East Ninth Street, 
Cleveland, Ohio, 44199-2060, (216) 522-3994. Please reference the name 
of the proposal and the docket number in the heading above. If you wish 
receipt of your mailed comment to be acknowledged, please include a 
stamped self-addressed envelope or postcard for that purpose. Comments 
and materials received will be available for public inspection at the 
above location from 9 a.m. to 3 p.m. Monday through Friday.

FOR FURTHER INFORMATION CONTACT:
Lieutenant (junior grade) Katherine E. Weathers, Chief of the Case 
Management & Port Safety Section, Ninth Coast Guard District, (216) 
522-3994.

SUPPLEMENTARY INFORMATION:

Request for Comments

    Comments on this regulation, including comments on the prior 
version in effect during the 1993 navigation season, or future 
regulations of the same nature, on either a temporary or permanent 
basis, are all invited. All comments received will be considered in any 
proposal for a final rulemaking at the end of the 1994 navigation 
season. The Coast Guard does not currently plan to have a public 
hearing, but consideration will be given to holding such a hearing if 
it is requested. Such a request should indicate how a public hearing 
would contribute substantial information or views which cannot be 
received in written form. If it appears that a public hearing would 
substantially contribute to revisions or further refinements of this 
rulemaking, the Coast Guard will announce such a hearing by a later 
notice in the Federal Register.

Discussion of Comment Period

    In accordance with 5 U.S.C. 553, a notice of proposed rulemaking 
was not published for this 1994 regulation, and good cause exists for 
making it effective less than 30 days after Federal Register 
publication. A notice of proposed rulemaking is unnecessary under 5 
U.S.C. 553(b)(3)(B) because this regulation is simply a continuation, 
with minor amendments, of the 1993 regulation noticed on January 13, 
1993 (58 FR 4130) and promulgated on April 5, 1993 (58 FR 17526). The 
minor amendments made in this version of the regulation reduce rather 
than expand the scope of the operating exemptions granted by the prior 
version. The Coast Guard published a Notice of Proposed Rulemaking for 
the 1993 temporary rule and invited comments from the public. No 
adverse comments were received. Repetition of the prior notice period 
would be contrary to the public interest as well as unnecessary under 5 
U.S.C. 553(b)(3)(B) because it would impede the further testing of a 
commercial innovation which so far has proved to be safe without adding 
significantly to the opportunity to make public comments. Additional 
comments are invited during the continuation of the test period in the 
1994 navigation season and the Commander of the Ninth Coast Guard 
District will consider all comments received before November 1, 1994.
    Finally, the requirement for 30 days notice before the effective 
date of the regulation is not applicable under 5 U.S.C. 553(d)(1) 
because this temporary action is a substantive action to ``relieve a 
restriction'' on commerce otherwise imposed by the standing 
regulations. This temporary regulation will lessen the restrictiveness 
of the speed limits otherwise applicable to nondisplacement vessels in 
the connecting waters from Lake Huron to Lake Erie in the absence of 
any temporary regulation.

Background and Purpose

    Current regulations in 33 CFR 162.138 which apply to connecting 
waters from Lake Huron to Lake Erie set maximum speed for vessels 20 
meters or more in length at limits ranging from 4 to 12 statute miles 
per hour in various areas. One of the primary purposes of these speed 
regulations is to limit wake damage. The standing regulations were not 
written to account for the substantially lesser wake-generating 
characteristics of nondisplacement vessels. In fact, certain vessels 
designed for nondisplacement operation would generate larger wakes at 
the lower speeds now required because they would be forced to operate 
in a displacement mode. During the 1993 navigation season, the 
Commander of the Ninth Coast Guard District temporarily amended 33 CFR 
162.138 in order to allow trial runs of nondisplacement vessels which 
requested permission to operate in the nondisplacement mode in the area 
(33 CFR 162.T139, 58 FR 17526, April 5, 1993). A corresponding 
exemption was granted by the Central Region of the Canadian Coast 
Guard, which has authority over the Canadian waters in the same area. 
That trial period allowed nondisplacement vessels less than 100 gross 
tons to operate in the nondisplacement mode at speeds not more than 40 
statute miles per hour. During the 1993 trial period, one complaint was 
received alleging excessive wake. Upon investigation, it appeared that 
the vessel gave the impression of creating an excessive wake because of 
its relatively high rate of speed during a sharp turn. The Coast Guard 
was unable to determine if in fact an excessive wake was generated in 
that one case. There was no damage, and the operator agreed to modify 
similar maneuvers in the future in order to avoid any problem. Also, it 
should be noted that this amendment of the speed limit for 
nondisplacement vessels does not in any way excuse the general 
obligation to exercise good seamanship when maneuvering in close 
quarters or the responsibility for damage which might be caused by a 
wake which is excessive in a location close to other vessels or shore 
structures. No subsequent complaints of any kind were received by the 
Canadian Coast Guard or the U.S. Coast Guard.
    With concurrence from the Director General of the Canadian Coast 
Guard Central Region, the Commander of the Ninth Coast Guard District 
considers it appropriate to institute another temporary test period 
during the 1994 navigation season. This new period will extend from 
April 1, 1994 through November 30, 1994. During this time, the 
Commander of the Ninth Coast Guard District will test the feasibility 
of some minor refinements to the prior version of the temporary 
regulation. Generally, these refinements place more conditions on the 
use of the higher speeds by the operators of the nondisplacement 
vessels in order to better ensure safe, effectively regulated 
operations.
    As before, the Commander of the Ninth Coast Guard District is 
setting an upper limit of 40 statute miles per hour for nondisplacement 
vessels 20 meters or more in length but less than 100 gross tons, and 
is allowing such nondisplacement vessels to overtake other vessels when 
otherwise safe. All other navigational regulations will remain in 
force. This regulation specifically provides that it does not preempt 
any state or local law or regulation setting a lower speed limit 
applicable to nondisplacement vessel in areas under the jurisdiction of 
such state or local authority. (The Canadian Coast Guard Central Region 
is also stipulating that the higher speed limit will not be applicable 
to certain harbors areas in Canada, particularly the harbor of Windsor, 
Ontario.) Each vessel operator shall submit a schedule to the Captain 
of the Port Detroit at least thirty days in advance for each 
anticipated excursion. The schedule shall contain an itinerary for each 
excursion including dates, arrival and departure times, all destination 
points, and the nature of the excursion, i.e., passengers, no 
passengers, etc. The vessel operator must then confirm each excursion 
with the Captain of the Port Detroit between three and seven working 
days prior to the intended date of the departure. This will give the 
Captain of the Port time to anticipate potential conflicts with 
scheduled marine events, and allow timely notice through a Broadcast 
Notice to Mariners. Any excursion schedule not submitted within the 
thirty day time frame may be subject to Captain of the Port 
disapproval. These special provisions for nondisplacement vessels will 
apply only during daylight hours, defined as sunrise to sunset. The 
Captain of the Port or Commander, Ninth Coast Guard District may revoke 
approval of operations at the increased speed for the remainder of the 
navigation season due to an operator's failure to comply with any of 
these requirements.

Drafting Information

    The principal persons involved in drafting this document are 
Lieutenant (junior grade) Katherine E. Weathers and Commander M. Eric 
Reeves, Project Managers, and Commander Robert G. Blythe, Project 
Counsel.

Environment

    The Coast Guard has considered the environmental impact of this 
regulation and concluded that, under section 2.B.2.c. of Coast Guard 
Commandment Instruction M16475.1B, it is categorically excluded from 
further environmental documentation.

Federalism

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this regulation does not have sufficient federalism implications 
to warrant the preparation of a Federalism Assessment. This regulation 
does not impose any new regulatory requirements in an area not 
heretofore regulated by the Federal Government, and does not impose any 
requirements or restrictions on State or local authorities. This 
regulation specifically provided that it does not preempt any state or 
local law or regulation setting a lower speed limit applicable to 
nondisplacement vessel in areas under the jurisdiction of such state or 
local authority.

Regulatory Evaluation

    This temporary final rule is not considered a significant 
regulatory action under Executive Order 12866 and is not significant 
under the Department of Transportation Regulatory Policies and 
Procedures (44 FR 11034 of February 26, 1979).

Small Entities

    The economic impact of this regulation is expected to be so minimal 
that a full evaluation is unnecessary. In fact, the Coast Guard is 
making this amendment in part in order to avoid causing the existing 
regulations to have an unintended economic impact on a new mode of 
commercial operation. Since the impact of this regulation is expected 
to be minimal, the Coast Guard certifies that, if adopted, it will not 
have a significant economic impact on a substantial number of small 
entities.

Collection of Information

    The regulation will impose no collection of information 
requirements under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

List of Subjects in 33 CFR Part 162

    Navigation (water), Waterways.

Regulations

    In consideration of the foregoing, the Coast Guard is amending part 
162 of title 33, Code of Federal Regulations as follows:
    1. The authority citation for part 162 continues to read as 
follows:

    Authority: 33 U.S.C. 1231; 49 CFR. 1.46.

    2. A temporary Sec. 162.T139 is added as follows:

Sec. 162.T139  Nondisplacement vessels under 100 gross tons.

    (a) Notwithstanding Secs. 162.134 and 162.138(a), nondisplacement 
vessels 20 meters or more in length but under 100 gross tons may 
operate in the nondisplacement mode at speeds not more than 40 miles 
per hour, and may overtake other vessels--
    (1) during daylight hours (sunrise to sunset),
    (2) when conditions otherwise safely allow, and
    (3) when approval has been granted by the Coast Guard Captain of 
the Port or District Commander prior to each transit of the area.
    (b) Except for provisions on overtaking other vessels, the 
provisions in Sec. 162.134 continue to apply.
    (c) Each vessel operator wishing to operate under the provisions of 
this section shall submit a schedule to the Captain of the Port Detroit 
at least thirty days in advance for each anticipated excursion.
    (d) The schedule shall contain an itinerary for each excursion 
including dates, arrival and departure times, all destination points, 
and the nature of the excursion.
    (e) The vessel operator must confirm each excursion with the 
Captain of the Port Detroit no less than three and no more than seven 
working days prior to the intended date of departure.
    (f) The Captain of the Port Detroit or Commander, Ninth Coast Guard 
District may deny approval for all future operations during the 
navigation season due to an operator's failure to comply with any of 
these requirements.
    (g) This temporary section does not preempt any state or local law 
or regulation setting a lower speed limit applicable to nondisplacement 
vessel in areas under the jurisdiction of such state or local 
authority.
    (h) This section becomes effective on 12:01 a.m. on April 1, 1994 
and terminates on 12 midnight on November 30, 1994.

    Dated: March 25, 1994.
Rudy K. Peschel,
Rear Admiral, U.S. Coast Guard Commander, Ninth Coast Guard District.
[FR Doc. 94-8373 Filed 4-6-94; 8:45 am]
BILLING CODE 4910-14-M