[Federal Register Volume 76, Number 74 (Monday, April 18, 2011)]
[Rules and Regulations]
[Pages 21633-21636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9255]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket No. USCG-2008-0852]
RIN 1625-AA01


Disestablishing Special Anchorage Area 2; Ashley River, 
Charleston, SC

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is disestablishing the special anchorage, 
referred to as Ashley River Anchorage 2, in Charleston, South Carolina. 
The removal of Ashley River Anchorage 2 would accommodate an expansion 
of the Ripley Light Yacht Club.

DATES: This rule is effective July 18, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2008-0852 and are available online by going to 
http://www.regulations.gov, inserting USCG-2008-0852 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is also available for 
inspection or copying at the 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, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Lieutenant Julie Blanchfield, Sector Charleston Office 
of Waterways Management, Coast Guard; telephone 843-740-3184, e-mail 
[email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On June 5, 2009, we published a notice of proposed rulemaking 
(NPRM) entitled Disestablishing Special Anchorage Area 2; Ashley River, 
Charleston, SC in the Federal Register (74 FR 27000). We received six 
submissions, with a total of 24 comments on the proposed rule. No 
public meetings were requested, and a public meeting was not held.

Basis and Purpose

    Under 33 U.S.C. 471, 1221 through 1236, 2030, 2035, and 2071; 33 
CFR 1.05-1; and the Department of Homeland Security Delegation No. 
0170.1, the Coast Guard may establish special anchorage areas. A 
special anchorage area is a designated water area within which vessels 
sixty-five feet (20 meters) or less in length are not required to: (1) 
Sound signals required by Rule 35 of the Inland Navigation Rules (33 
U.S.C. 2035); or (2) exhibit the white anchor lights or shapes required 
by Rule 30 of the Inland Navigation Rules (33 U.S.C. 2030).
    Ashley River Properties and the Ripley Light Yacht Club submitted a 
permit application to the Army Corps of Engineers to construct an 
additional 200 slips for pleasure craft at the Ripley Light Yacht Club 
in Charleston, South Carolina. The proposed expansion would encompass 
most of the area currently designated as Ashley River Anchorage 2. 
Removal of Ashley River Anchorage 2 would be necessary before the 
Ripley Light Yacht Club expansion can commence. There are, however, 
several other locations where vessels currently anchored at Ashley 
River Anchorage 2 may relocate.

Background

    In 1983, the Port of Charleston had no designated special anchorage 
areas. Subsequently, two anchorage areas were designated. However, no 
distinction was made between anchorage for commercial and recreational 
vessels; either type of vessel could anchor in the two designated 
anchorages. These two anchorage areas did not provide a sufficient area 
for large commercial vessels, and they did not prevent both large 
commercial vessels and small recreational vessels from competing for 
the same anchorage grounds.
    In 1984, the Coast Guard published a final rule (49 FR 26587) 
establishing the four currently designated commercial anchorage areas 
in the Port of Charleston under 33 CFR 110.173. The Coast Guard also 
established a special anchorage area adjacent to the Charleston 
Peninsula on the Ashley River. This special anchorage area on the 
Ashley River existed until the Coast Guard issued a final rule in 1996 
(61 FR 40993) converting the special anchorage area into two special 
anchorage areas: Ashley River Anchorage 1 and Ashley River Anchorage 2. 
The special anchorage area was converted to accommodate an expansion to 
the George M. Lockwood Municipal Marina, currently known as The City 
Marina. Ashley River Anchorage 2 is the smaller of the two special 
anchorage areas established in 1996.
    In 2008, Ashley River Properties and the Ripley Light Yacht Club 
submitted a permit to the Army Corps of Engineers to construct 200 
additional boat slips at the Ripley Light Yacht Club. The proposed 
expansion encompasses most of the area currently designated as Ashley 
River Anchorage 2. The Ripley Light Yacht Club expansion will 
accommodate significantly more vessels than can currently safely anchor 
in Ashley River Anchorage 2.
    The Ripley Light Yacht Club intends to reserve several of the 200 
additional slips for transient recreational boaters. Additionally, 
transient slips are available at the Ripley Light Yacht Club, The City 
Marina, and Anchorage 1 remains a viable and convenient location for 
recreational vessels to anchor. Finally, recreational vessels may 
anchor in other areas of the Port of Charleston so long as they comply 
with applicable Navigation Rules and do not pose a navigational hazard 
while anchored.

Discussion of Comments and Changes

    The Coast Guard received six submissions, containing a total of 24 
comments, regarding the NPRM.

Abandoned and Sunken Vessels

    One comment stated that due to the considerable amount of abandoned 
and sunken vessels within the larger remaining anchorage, Ashley River 
Anchorage 1 will not be able to accommodate vessels currently anchored 
in Ashley River Anchorage 2. Three comments recommended Ashley River 
Anchorage 2 not be disestablished until abandoned and sunken vessels in 
the two special anchorage areas were removed. The Coast Guard 
understands that Ashley River Properties will remove all abandoned and 
sunken vessels in both special anchorage areas prior to commencing the 
Ripley Light Yacht Club expansion. The removal of abandoned and sunken 
vessels would provide additional space in Ashley River Anchorage 1. 
After abandoned and sunken vessels have been removed from Ashley River 
Anchorage 1, Ashley River Anchorage 1 will be able to accommodate all 
of the vessels currently in Ashley River Anchorage 2. Additionally, 
this rule does not require vessels to leave the location where they are 
currently anchored. This rule merely

[[Page 21634]]

disestablishes Ashley River Anchorage 2. Vessels may still remain 
anchored in their current location so long as they comply with 
applicable Navigation Rules and do not pose a navigational hazard while 
anchored. Therefore, the Coast Guard made no changes to the final rule 
based on these comments.
    One comment suggested that by disestablishing Ashley River 
Anchorage 2, the Coast Guard would be encouraging the abandonment of 
vessels in alternate locations. The Coast Guard does not establish 
special anchorage areas to facilitate the abandonment of vessels, nor 
should special anchorage areas be used in such a manner. Additionally, 
there are several other locations where vessels currently anchored at 
Ashley River Anchorage 2 may relocate, including Ashley River Anchorage 
1. Therefore, the Coast Guard made no changes to the final rule based 
on this comment.
    Two comments expressed concern that: (1) Some persons who currently 
anchor their vessels at Ashley River Anchorage 2 may not be able to 
afford to pay for a slip rental in the Port of Charleston; (2) there 
are few inexpensive places in the Charleston area to anchor; and (3) 
Ashley River Anchorages 1 and 2 should be protected. The Coast Guard is 
not reducing the number of free or low-cost anchoring locations by 
removing Ashley River Anchorage 2. The Coast Guard understands that, as 
part of the Ripley Light Yacht Club expansion project, Ashley River 
Properties will be removing abandoned and sunken vessels from both 
special anchorage areas. Removal of these abandoned and sunken vessels 
in Ashley River Anchorage 1 will provide additional space for those 
vessels currently anchored at Ashley River Anchorage 2. Moreover, 
vessels may still anchor in other areas in the Port of Charleston at no 
cost so long as they comply with applicable Navigation Rules and do not 
pose a navigational hazard while anchored. Therefore, the Coast Guard 
does not believe that disestablishing Ashley River Anchorage 2 will 
prevent mariners from anchoring their boats nearby. There are several 
nearby locations where vessels currently anchored in Ashley River 
Anchorage 2 may relocate, including Ashley River Anchorage 1. 
Therefore, the Coast Guard made no changes to the final rule based on 
these comments.
    One comment stated that Ashley River Anchorage 1 is much more 
exposed to prevailing wind and weather than Ashley River Anchorage 2 
and, therefore, is more suitable to larger vessels than Ashley River 
Anchorage 2. The Coast Guard disagrees with this comment. Ashley River 
Anchorage 1 is not much more exposed to prevailing wind and weather 
than Ashley River Anchorage 2. In fact, the two anchorages are within 
200 yards of one another. Therefore, the Coast Guard made no changes to 
the final rule based on this comment.
    Two comments stated that the area between Ripley Light Yacht Club 
and the Ashley River Marina will become overly congested by vessel 
traffic because of the Ripley Light Club expansion. The Coast Guard 
believes that disestablishing Ashley River Anchorage 2 will not 
increase vessel congestion in this area. The removal of Ashley River 
Anchorage 2 and the abandoned and sunken vessels contained in the 
anchorage will actually increase space for vessels to maneuver. 
Therefore, the Coast Guard made no changes to the final rule based on 
these comments.

Ripley Light Yacht Club Marina Expansion

    Two comments stated that because the proposed expansion extends 
into the anchorage, the construction permit should have been denied. 
The Coast Guard does not have authority to approve or disapprove the 
Ripley Light Club expansion, and the Ripley Light Yacht Club marina 
expansion permitting process is not within the scope of this final 
rule. Comments regarding the issuance of the Ripley Light Yacht Club 
marina expansion permit should be submitted to Federal, State, and 
local agencies handling the permit application, including the Army 
Corps of Engineers and the South Carolina Office of Coastal Resource 
Management. Therefore, the Coast Guard made no changes to the final 
rule based on these comments.
    One comment stated that the Ripley Light Yacht Club is not similar 
to other yacht clubs and is more like a business. The name and business 
practices of the Ripley Light Yacht Club are outside the scope of this 
rulemaking. Therefore, the Coast Guard made no changes to the final 
rule based on this comment.
    One comment stated that the proposed rule benefits the private 
financial gain of the developer at the expense of numerous small 
entities. The Coast Guard disagrees that disestablishing Ashley River 
Anchorage 2 would impose costs on small entities. There are several 
nearby locations where vessels currently anchored in Ashley River 
Anchorage 2 may relocate at no additional cost.
    One comment stated that the developer has no riparian rights to the 
land beneath Ashley River Anchorage 2, and that the proposed rule would 
give Federal property to a private entity. This comment is outside the 
scope of the final rule. By disestablishing Ashley River Anchorage 2, 
the Coast Guard is not conferring any Federal property rights on any 
private entity. Therefore, the Coast Guard made no changes to the final 
rule based on this comment.
    One comment stated that an environmental study should be conducted 
to analyze the environmental effects of the marina expansion. While the 
permit process for the marina expansion may require an environmental 
review, the Coast Guard has determined that the disestablishment of the 
Ashley River Anchorage 2 is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment under the National Environmental Policy Act of 1969 (42 
U.S.C. 4321-4370f). The Environment section below discusses this 
categorical exclusion determination in detail. Therefore, the Coast 
Guard made no changes to the final rule based on these comments.
    One comment stated that under the Background and Purpose and 
Discussion of Proposed Rule sections of the NPRM, the Coast Guard 
indicated that the proposed marina expansion will ``extend into'' 
Ashley River Anchorage 2, when the expansion actually completely 
encompasses the existing anchorage. The Coast Guard disagrees with the 
comment that the expansion will completely encompass Ashley River 
Anchorage 2. However, the Coast Guard has amended the preamble to state 
that the expansion will ``encompass most of the area currently 
designated as Ashley River Anchorage 2.''

Local Enforcement of Anchorage

    One comment suggested the creation of an association of interested 
citizens that could monitor and assist in maintaining Ashley River 
Anchorage 2. This comment is outside the scope of the regulation. 
Therefore, the Coast Guard made no changes to the final rule based on 
this comment.
    Two comments recommended that jurisdiction over Ashley River 
Anchorage 1 and 2 should be turned over to the local government to 
establish and enforce. To the extent this comment suggests the creation 
of local ordinances, the suggestion is outside the Coast Guard's 
authority, and the Coast Guard does not believe this recommendation 
affects the disestablishment of Ashley River Anchorage 2. Additionally, 
a proposal to disestablish Ashley River Anchorage

[[Page 21635]]

1 would require a separate rulemaking. At this time, the Coast Guard 
does not have any intention of disestablishing Ashley River Anchorage 
1. Therefore, the Coast Guard made no changes to the final rule based 
on these comments.

Relocation of the Ashley River Channel

    Two comments stated that The City Marina may attempt to have the 
existing channel relocated westward due to insufficient water depths at 
The City Marina. As such, The City Marina will soon be submitting a 
permit that would affect both anchorages. These commenters recommended 
the Coast Guard abandon this rulemaking until The City Marina submits 
the permit. The Coast Guard does not believe the proposal by The City 
Marina should have any impact on disestablishing Ashley River Anchorage 
2. While relocation of the channel could impact the location of part of 
Ashley River Anchorage 1, it should not reduce the overall anchorage 
space. In any event, the Coast Guard will consider proposals affecting 
Ashley River Anchorage 1 separately. Therefore, the Coast Guard made no 
changes to the final rule based on these comments.

Notice and Comments Regarding the Proposed Rule

    One comment stated that Marine Safety Information Bulletin (MSIB) 
31-09, announcing the proposed rule, was not distributed to every 
vessel currently moored in Ashley River Anchorage 2 until July 10, 
2009. The Coast Guard provided notice of the NPRM by several means. 
First, on June 1, 2009, the Coast Guard posted MSIB 31-09 on the 
Internet at http://homeport.uscg.mil. Second, on June 1, 2009, the 
Coast Guard e-mailed MSIB 31-09 to subscribers of a Coast Guard 
sponsored e-mail list server, which is available for free to the public 
at http://cgls.uscg.mil/mailman/listinfo/secchas-msib. Third, the NPRM 
was published in the Federal Register on June 5, 2009 (74 FR 27000). 
Fourth, the Coast Guard distributed MSIB 31-09 to all vessels in Ashley 
River Anchorage 2. Such notification efforts exceed standard outreach 
efforts for Federal Register publications and satisfy the notice 
requirement set forth in the Administrative Procedure Act (5 U.S.C. 
553).
    One comment requested that the Coast Guard consider extending the 
August 4, 2009 deadline for public comments. The Coast Guard did not 
receive this request to extend the comment period until August 3, 2009, 
the day prior to the end of the comment period, and did not believe it 
necessary to extend the comment period.
    After considering all the comments, the Coast Guard made no changes 
to the proposed rule.

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.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, 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.
    The economic impact of this rule is not significant because of the 
following reasons: (1) The limited geographic area impacted by 
disestablishing Ashley River Anchorage 2 will not restrict or otherwise 
significantly impact the movement or routine operation of a large 
number of commercial or recreational vessels in the Ashley River; and 
(2) vessels currently located in Ashley River Anchorage 2 may relocate 
to Ashley River Anchorage 1, a larger anchorage nearby, or other areas 
of the Port of Charleston, where they may anchor at no cost, so long as 
they comply with applicable Navigation Rules and do not pose a 
navigational hazard while anchored.

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 may affect the following entities, some of which 
may be small entities: the owners or operators of recreational vessels 
intending to anchor in the Port of Charleston, Ripley Light Yacht Club, 
and The City Marina. This rule would not have a significant impact on a 
substantial number of small entities for the following reasons: (1) 
Ashley River Anchorage 2 is small and cannot accommodate many vessels; 
(2) recreational vessels that currently anchor at Ashley River 
Anchorage 2 may anchor at many other nearby locations, including Ashley 
River Anchorage 1, Ripley Light Yacht Club, or The City Marina, all of 
which are located nearby; and (3) after the expansion is completed, the 
Ripley Light Yacht Club will be able to accommodate significantly more 
transient vessels than could fit in Ashley River Anchorage 2.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
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 
(1-888-734-3247). 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

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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 cause 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 023-01 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 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule is categorically excluded, under figure 2-1, paragraph (34)(f), of 
the Instruction, because it involves disestablishing a special 
anchorage area. Under figure 2-1, paragraph (34)(f), of the 
Instruction, an environmental analysis checklist and a categorical 
exclusion determination are not required for this rule.

List of Subjects in 33 CFR Part 110

    Anchorage grounds.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 110 as follows:

PART 110--ANCHORAGE REGULATIONS

0
1. The authority citation for part 110 continues to read as follows:

    Authority:  33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 
33 CFR 1.05-1; Department of Homeland Security Delegation No. 
0170.1.


0
2. Revise Sec.  110.72d to read as follows:


Sec.  110.72d  Ashley River, SC.

    All waters on the southwest portion of the Ashley River encompassed 
within the following points: beginning at 32[deg]46'42.7'' N, 
79[deg]57'19.3'' W; thence southwest to 32[deg]46'38.0'' N, 
79[deg]57'24.0'' W; thence southeast to 32[deg]46'32.0'' N, 
79[deg]57'15.5'' W; thence southeast to 32[deg]46'29.0'' N, 
79[deg]57'00.9'' W; thence back to origin following the southwest 
boundary of the Ashley River Channel. All coordinates are North 
American Datum 1983.

    Dated: March 10, 2011.
William D. Baumgartner,
Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard 
District.
[FR Doc. 2011-9255 Filed 4-15-11; 8:45 am]
BILLING CODE 9110-04-P