[Federal Register Volume 69, Number 196 (Tuesday, October 12, 2004)]
[Proposed Rules]
[Pages 60592-60595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22745]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[CGD05-03-036]
RIN 1625-AA01


Baltimore Harbor Anchorage Project

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to amend the geographic coordinates 
and modify the regulated use of the anchorages in Baltimore Harbor, MD. 
Since publication of the previous supplemental notice of proposed 
rulemaking (SNPRM), the Coast Guard also proposes to change the 
requirements for visitors on board vessels carrying Certain Dangerous 
Cargoes (CDC) and to reinstate time restrictions, inadvertently 
excluded from the notice of proposed rulemaking (NPRM) and previous 
SNPRM, for vessels anchored in designated anchorage grounds. This 
supplemental notice of proposed rulemaking solicits comments for those 
changes plus all original changes in the NPRM and the two changes 
published in the first SNPRM. An explanation of the additional changes 
can be found in the ``Discussion of Rule'' section of this document.

DATES: Comments and related material must reach the Coast Guard on or 
before December 13, 2004.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD05-03-036 and are available for inspection or 
copying at Commander, Fifth Coast Guard District (oan), 431 Crawford 
Street, Portsmouth, VA, 23704-5004 between 9 a.m. and 3 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Junior Grade Timothy 
Martin, Fifth Coast Guard District Aids to Navigation and Waterways 
Management Branch, (757) 398-6285, email: [email protected].

SUPPLEMENTARY INFORMATION:

Request for Comments

    The Coast Guard encourages you to participate in this rulemaking by 
submitting comments and related material. If you do so, please include 
your name and address, identify the docket number for this rulemaking 
(CGD05-03-036), 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 proposed rule in 
view of them.

Regulatory Information

    On July 2, 2003, we published a notice of proposed rulemaking 
(NPRM) (68 FR 39503) entitled Baltimore Harbor Anchorage Project in the 
Federal Register. We received one phone call commenting on the NPRM. No 
public hearing was requested, and none was held.
    On January 14, 2004 we published a supplemental notice of proposed 
rulemaking (SNPRM) (69 FR 2095) also entitled Baltimore Harbor 
Anchorage Project in the Federal Register. Since then some point 
coordinates outlining Anchorages 1, 2, 5, 6, and 7 have been refined 
through telephone and email correspondences with the National Oceanic 
and Atmospheric Administration (NOAA) and the U.S. Army Corps of 
Engineers better aligning the new anchorages with the Federal 
Navigation project.
    In the NPRM and previous SNPRM, with the exception of specific time 
limitations in three of the anchorages, the regulatory text omitted the 
language from the current regulation regarding the length of time a 
vessel may remain anchored in the general anchorages. The changes to 
this rule do not affect the time limitations set out in the current 
regulation and therefore, that language will be reinstated in the 
regulatory text in the final rule.

Background and Purpose

    The U.S. Army Corps of Engineers received Congressional 
authorization for the Baltimore Harbor Anchorage project in September 
2001. The objective of this project was to increase the project depths 
of Anchorages 3 and 4 to 42ft and 35ft respectively. The original 
Federal anchorage project for Baltimore Harbor was designed to 
accommodate cargo ships with maximum drafts of 33ft and lengths of 
550ft. The new dimensions of the anchorages were changed to accommodate 
larger ships calling on the Port that routinely approach 1000ft length, 
with drafts of 36 to 38 feet or more. The new

[[Page 60593]]

coordinates established for Anchorages 2, 3, and 4, also accommodate 
the widening of the Dundalk West Channel, a north/south Federal 
navigation project located between Anchorage 3 and Anchorage 4 and 
widening of the Dundalk East Channel, bordering Anchorage 4. Anchorage 
3 was divided into two sections: Anchorage 3 Lower (2200' x 2200' x 
42ft mean lower low water (MLLW)) and Anchorage 3 Upper (1800' x 1800' 
x 42ft MLLW). Anchorage 4 was also modified (1850' x 1800' x 35ft 
MLLW).
    Dredging for the Baltimore Harbor Anchorage was completed in May 
2003.

Discussion of Rule

    Since the previous SNPRM was published, the Coast Guard proposed 
additional changes by refining the positions of three coordinates 
surrounding Anchorages 2. The coordinates appeared to enter or come 
close to entering the Federal navigation project when viewed in 
automatic computer aided drafting (AUTOCAD) software. The proposed 
changes will remove any ambiguity in boundary lines when depicted on 
NOAA charts. The following three points outlining Anchorage 2 were 
changed:

 
              Latitude                            Longitude
 
(1) 39[deg]14[min]56.1[sec] N        76[deg]33[min]37.1[sec] W
(2) 39[deg]15[min]14.8[sec] N        76[deg]32[min]59.6[sec] W
(3) 39[deg]14[min]41.1[sec] N        76[deg]32[min]27.2[sec] W
 

    The new positions are:

 
              Latitude                            Longitude
 
(1) 39[deg]14[min]56.96[sec] N       76[deg]33[min]37.15[sec] W
(2) 39[deg]15[min]14.19[sec] N       76[deg]32[min]57.76[sec] W
(3) 39[deg]14[min]41.37[sec] N       76[deg]32[min]27.38[sec] W
 

    Since the width of Fort McHenry Channel was decreased from 800 feet 
to 700 feet Anchorage 1 has been positioned closer to the channel using 
USACE coordinates to facilitate access to that anchorage. The four 
points defining Anchorage 1 were changed and are reflected in the 
proposed regulation.
    Although not maintained by the USACE the coordinates defining 
Anchorages 5, 6, and, 7 have been adjusted to better align those 
anchorages with the Federal navigation project.
    The language requiring non-crewmembers to carry a pass issued by 
the Captain of the Port (COTP) while visiting ships at anchor carrying 
dangerous cargo or Class I (explosive) materials has been removed. The 
Coast Guard may include the requirement to carry a pass in the future. 
The remaining language allows the COTP to request all visitors to 
anchored vessels carrying dangerous cargo to carry a form of 
identification prescribed in the vessel's security plan. This proposed 
change will incorporate language consistent with other anchorage 
regulations.
    Time restrictions inadvertently left out of the NPRM and previous 
SNPRM have been reinstated throughout the regulation. In Sec.  110.158 
paragraph (a) time restrictions are listed in subparagraphs (1)(B), 
(2)(B), (3)(B), (4)(B), (5)(B), (6)(B), and (7)(B).

Regulatory Evaluation

    This proposed 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. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Homeland Security (DHS).
    The deepening of Anchorage 3 and Anchorage 4 within the Port of 
Baltimore accommodates deep draft vessels waiting for an open berth. 
The Coast Guard does not expect that these new regulations will 
adversely impact maritime commerce.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
would not have a significant economic impact on a substantial number of 
small entities. This proposed may affect the following entities, some 
of which might be small entities: The owners or operators of vessels 
used for chartering, taxi, ferry services, or any other marine traffic 
that transit this area of Fort McHenry Channel in Baltimore Harbor. 
Changes to Anchorage No. 3 and Anchorage No. 4 may change the vessel 
routing through this area of the harbor. Deepening the anchorages and 
changing the coordinates for the anchorages will not have a significant 
economic impact on a substantial number of small entities for the 
following reasons. Vessel traffic can pass safely around the new 
anchorage areas. The new coordinates for the anchorages are a change in 
dimension, the size of which will remain proportional to its current 
size, and their location will not interfere with commercial traffic.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small 
entities in understanding the proposed so that they could better 
evaluate its effects on them and participate in the rulemaking process. 
If the proposed would affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please contact LTJG Timothy 
Martin at the address listed (see ADDRESSES).

Collection of Information

    This proposed rule would call 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 proposed rule will not result in such 
expenditure, we do discuss possible effects in the section titled Small 
Entities in this preamble.

Taking of Private Property

    This proposed rule would 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 proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation,

[[Page 60594]]

eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed 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 and environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This proposed 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 proposed 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. 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 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)(f), of the Instruction, from further 
environmental documentation. This rule changes the size of Anchorage 
No. 2, Anchorage No. 3 and Anchorage No. 4 and modifies the regulated 
uses of these anchorages.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 110

    Anchorage Regulations
    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 110 as follows:

PART 110--ANCHORAGE REGULATIONS

    1. The authority citation for part 110 continues to read as 
follows:

    Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035 and 
2071; 33 CFR 1.05-1(g); Department of Homeland Security Delegation 
No. 0170.1.
    2. Revise Sec.  110.158 to read as follows:


Sec.  110.158  Baltimore Harbor, MD.

    All positions in this section use North American Datum 1983.
    (a) Anchorage Grounds
    (1) Anchorage No. 1, general anchorage.
    (i) The waters bounded by a line connecting the following points:

 
              Latitude                            Longitude
 
39[deg]15[min]13.51[sec] N           76[deg]34[min]07.76[sec] W
39[deg]15[min]11.01[sec] N           76[deg]34[min]11.69[sec] W
39[deg]14[min]52.98[sec] N           76[deg]33[min]52.67[sec] W
39[deg]14[min]47.90[sec] N           76[deg]33[min]40.73[sec] W
 

    (ii) No vessel shall remain in this anchorage for more than 12 
hours without permission from the Captain of the Port.
    (2) Anchorage No. 2, general anchorage.
    (i) The waters bounded by a line connecting the following points:

 
              Latitude                            Longitude
 
39[deg]14[min]46.23[sec] N           76[deg]33[min]25.82[sec] W
39[deg]14[min]56.96[sec] N           76[deg]33[min]37.15[sec] W
39[deg]15[min]08.55[sec] N           76[deg]33[min]37.65[sec] W
39[deg]15[min]19.28[sec] N           76[deg]33[min]24.49[sec] W
39[deg]15[min]19.33[sec] N           76[deg]33[min]14.32[sec] W
39[deg]15[min]14.19[sec] N           76[deg]32[min]57.76[sec] W
39[deg]15[min]06.87[sec] N           76[deg]32[min]45.48[sec] W
39[deg]14[min]41.37[sec] N           76[deg]32[min]27.38[sec] W
39[deg]14[min]30.93[sec] N           76[deg]32[min]33.52[sec] W
39[deg]14[min]46.27[sec] N           76[deg]32[min]49.69[sec] W
39[deg]14[min]43.76[sec] N           76[deg]32[min]53.62[sec] W
39[deg]14[min]57.51[sec] N           76[deg]33[min]08.13[sec] W
 

    (ii) No vessel shall remain in this anchorage for more than 72 
hours without a written permit from the Captain of the Port.
    (3) Anchorage No. 3, Upper, general anchorage.
    (i) The waters bounded by a line connecting the following points:

 
              Latitude                            Longitude
 
39[deg]14[min]32.48[sec] N           76[deg]33[min]11.31[sec] W
39[deg]14[min]46.23[sec] N           76[deg]33[min]25.82[sec] W
39[deg]14[min]57.51[sec] N           76[deg]33[min]08.13[sec] W
39[deg]14[min]43.76[sec] N           76[deg]32[min]53.62[sec] W
 

    (ii) No vessel shall remain in this anchorage for more than 24 
hours without permission from the Captain of the Port.
    (4) Anchorage No. 3, Lower, general anchorage.
    (i) The waters bounded by a line connecting the following points:

 
              Latitude                            Longitude
 
39[deg]14[min]32.48[sec] N           76[deg]33[min]11.31[sec] W
39[deg]14[min]46.27[sec] N           76[deg]32[min]49.69[sec] W
39[deg]14[min]30.93[sec] N           76[deg]32[min]33.52[sec] W
39[deg]14[min]24.40[sec] N           76[deg]32[min]39.87[sec] W
39[deg]14[min]15.66[sec] N           76[deg]32[min]53.58[sec] W
 

    (ii) No vessel shall remain in this anchorage for more than 72 
hours without a written permit from the Captain of the Port.
    (5) Anchorage No. 4, general anchorage.
    (i) The waters bounded by a line connecting the following points:

 
              Latitude                            Longitude
 
39[deg]13[min]52.91[sec] N           76[deg]32[min]29.60[sec] W
39[deg]14[min]05.91[sec] N           76[deg]32[min]43.30[sec] W
39[deg]14[min]07.30[sec] N           76[deg]32[min]43.12[sec] W
39[deg]14[min]17.96[sec] N           76[deg]32[min]26.41[sec] W
39[deg]14[min]05.32[sec] N           76[deg]32[min]13.09[sec] W
39[deg]14[min]00.46[sec] N           76[deg]32[min]17.77[sec] W
 

    (ii) No vessel shall remain in this anchorage for more than 72 
hours without a written permit from the Captain of the Port.
    (6) Anchorage No. 5, general anchorage.
    (i) The waters bounded by a line connecting the following points:

 
              Latitude                            Longitude
 
39[deg]14[min]07.89[sec] N           76[deg]32[min]58.23[sec] W

[[Page 60595]]

 
39[deg]13[min]34.82[sec] N           76[deg]32[min]23.66[sec] W
39[deg]13[min]22.25[sec] N           76[deg]32[min]28.90[sec] W
39[deg]13[min]21.20[sec] N           76[deg]33[min]11.94[sec] W
 

    (ii) No vessel shall remain in this anchorage for more than 72 
hours without a written permit from the Captain of the Port.
    (7) Anchorage No. 6, general anchorage.
    (i) The waters bounded by a line connecting the following points:

 
              Latitude                            Longitude
 
39[deg]13[min]42.98[sec] N           76[deg]32[min]19.11[sec] W
39[deg]13[min]20.65[sec] N           76[deg]31[min]55.58[sec] W
39[deg]13[min]34.00[sec] N           76[deg]31[min]33.50[sec] W
39[deg]14[min]01.95[sec] N           76[deg]32[min]02.65[sec] W
39[deg]13[min]51.01[sec] N           76[deg]32[min]18.71[sec] W
 

    (ii) No vessel shall remain in this anchorage for more than 72 
hours without a written permit from the Captain of the Port.
    (8) Anchorage No. 7, Dead ship anchorage.
    (i) The waters bounded by a line connecting the following points:

 
              Latitude                            Longitude
 
39[deg]13[min]00.40[sec] N           76[deg]34[min]10.40[sec] W
39[deg]13[min]13.40[sec] N           76[deg]34[min]10.81[sec] W
39[deg]13[min]13.96[sec] N           76[deg]34[min]05.02[sec] W
39[deg]13[min]14.83[sec] N           76[deg]33[min]29.80[sec] W
39[deg]13[min]00.40[sec] N           76[deg]33[min]29.90[sec] W
 

    (ii) The primary use of this anchorage is to lay up dead ships. 
Such use has priority over other uses. A written permit from the 
Captain of the Port must be obtained prior to the use of this anchorage 
for more than 72 hours.
    (b) Definitions. As used in this section:
    Class 1 (explosive) materials means Division 1.1, 1.2, 1.3, and 1.4 
explosives, as defined in 49 CFR 173.50.
    Dangerous cargo means certain dangerous cargo as defined in Sec.  
160.203 of this title.
    (c) General regulations. (1) Except as otherwise provided, this 
section applies to vessels over 20 meters long and all vessels carrying 
or handling dangerous cargo or Class 1 (explosive) materials while 
anchored in an anchorage ground described in this section.
    (2) Except in cases where unforeseen circumstances create 
conditions of imminent peril, or with the permission of the Captain of 
the Port, no vessel shall be anchored in Baltimore Harbor and Patapsco 
River outside of the anchorage areas established in this section for 
more than 24 hours. No vessel shall anchor within a tunnel, cable or 
pipeline area shown on a government chart. No vessel shall be moored, 
anchored, or tied up to any pier, wharf, or other vessel in such manner 
as to extend into established channel limits. No vessel shall be 
positioned so as to obstruct or endanger the passage of any other 
vessel.
    (3) Except in an emergency, a vessel that is likely to sink or 
otherwise become a menace or obstruction to navigation or the anchoring 
of other vessels may not occupy an anchorage, unless the vessel obtains 
a permit from the Captain of the Port.
    (4) The Captain of the Port may grant a revocable permit to a 
vessel for a habitual use of an anchorage. Only the vessel that holds 
the revocable permit may use the anchorage during the period that the 
permit is in effect.
    (5) Upon notification by the Captain of the Port to shift its 
position, a vessel at anchor shall get underway and shall move to its 
new designated position within 2 hours after notification.
    (6) The Captain of the Port may prescribe specific conditions for 
vessels anchoring within the anchorages described in this section, 
including, but not limited to, the number and location of anchors, 
scope of chain, readiness of engineering plant and equipment, usage of 
tugs, and requirements for maintaining communication guards on selected 
radio frequencies.
    (7) No vessel at anchor or at a mooring within an anchorage may 
transfer oil to or from another vessel unless the vessel has given the 
Captain of the Port the four hours advance notice required by Sec.  
156.118 of this title.
    (8) No vessel shall anchor in a ``dead ship'' status (propulsion or 
control unavailable for normal operations) without prior approval of 
the Captain of the Port.
    (d) Regulations for vessels handling or carrying dangerous cargoes 
or Class 1 (explosive) materials.
    (1) This paragraph (d) applies to every vessel, except a U.S. naval 
vessel, handling or carrying dangerous cargoes or Class 1 (explosive) 
materials.
    (2) The Captain of the Port may require every person having 
business aboard a vessel handling or carrying dangerous cargoes or 
Class 1 (explosive) materials while in an anchorage, other than a 
member of the crew, to hold a form of identification prescribed in the 
vessel's security plan.
    (3) Each person having business aboard a vessel handling or 
carrying dangerous cargoes or Class 1 (explosive) materials while in an 
anchorage, other than a member of the crew, shall present the 
identification prescribed by paragraph (d)(2) of this section to any 
Coast Guard Boarding Officer who requests it.
    (4) Each non-self-propelled vessel handling or carrying dangerous 
cargoes or Class 1 (explosive) materials must have a tug in attendance 
at all times while at anchor.
    (5) Each vessel handling or carrying dangerous cargoes or Class 1 
(explosive) materials while at anchor must display by day a bravo flag 
in a prominent location and by night a fixed red light.

    Dated: September 28, 2004.
Ben Thomason III,
Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard 
District.
[FR Doc. 04-22745 Filed 10-8-04; 8:45 am]
BILLING CODE 4910-15-U