
[Federal Register: April 26, 2011 (Volume 76, Number 80)]
[Rules and Regulations]               
[Page 23193-23196]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ap11-10]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 167

[Docket No. USCG-2010-0718]
RIN 1625-AB55

 
Traffic Separation Schemes: In the Approaches to Portland, ME; 
Boston, MA; Narragansett Bay, RI and Buzzards Bay, MA; Chesapeake Bay, 
VA, and Cape Fear River, NC

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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[[Page 23194]]

SUMMARY: The Coast Guard is finalizing without change its December 13, 
2010, interim rule codifying traffic separation schemes in the 
approaches to Portland, ME; in the approaches to Boston, MA; in the 
approaches to Narragansett Bay, RI and Buzzards Bay, MA; and in the 
approaches to the Cape Fear River, NC, and updating the then-current 
regulations for the traffic separation scheme in the approaches to 
Chesapeake Bay, VA. The Coast Guard established these traffic 
separation schemes under authority of the Ports and Waterways Safety 
Act.

DATES: This final rule is effective May 26, 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-2010-0718 and are 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. You may also find this 
docket on the Internet by going to http://www.regulations.gov, 
inserting USCG-2010-0718 in the ``Keyword'' box, and then clicking 
``Search''.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
contact Mr. George Detweiler, U.S. Coast Guard Office of Navigation 
Systems, telephone 202-372-1566, or e-mail George.H.Detweiler@uscg.mil. 
If you have questions on viewing the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

I. Abbreviations
II. Regulatory History
III. Background
IV. Discussion of Comments and Changes
V. Regulatory Analyses
    A. Executive Order 12866 and Executive Order 13563
    B. Small Entities
    C. Assistance for Small Entities
    D. Collection of Information
    E. Federalism
    F. Unfunded Mandates Reform Act
    G. Taking of Private Property
    H. Civil Justice Reform
    I. Protection of Children
    J. Indian Tribal Governments
    K. Energy Effects
    L. Technical Standards
    M. Environment

I. Abbreviations

2004 Act Coast Guard and Maritime Transportation Act of 2004
ATBA Area to be Avoided
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
IMO International Maritime Organization
NOAA National Oceanic and Atmospheric Administration
PARS Port Access Route Study
PAWSA Ports and Waterways Safety Act
TSS Traffic Separation Scheme
U.S.C. United States Code

II. Regulatory History

    On December 13, 2010, the Coast Guard published an interim rule (75 
FR 77529) that codified existing Traffic Separation Schemes (TSSs) in 
the Approaches to Portland, ME; Boston, MA; Narragansett Bay, RI and 
Buzzards Bay, MA; Chesapeake Bay, VA; and Cape Fear River, NC. The 
Coast Guard did not publish a Notice of Proposed Rulemaking (NPRM) for 
this rule under the Administrative Procedure Act ``good cause'' 
exception at 5 U.S.C. 553(b)(B). The interim rule sought comments on 
the enumerated TSSs. The comment period closed December 28, 2010, and 
we received no public comments on the interim rule. No public meeting 
was requested and none was held.
    The interim rule became effective on January 12, 2011. There are no 
changes from the interim rule to this final rule.

III. Background

    With this rule, the Coast Guard finalizes without change the 
codification of the traffic separation schemes (TSSs) identified above. 
The Coast Guard created each of these TSSs after conducting a Port 
Access Route Study (PARS) in accordance with the Ports and Waterways 
Safety Act (PAWSA) 33 U.S.C. 1221-1232. Each TSS that is part of this 
rulemaking is shown on nautical charts, is described in the United 
States Coast Pilot, was implemented by the International Maritime 
Organization, and is described in ``Ships Routeing,'' Tenth Edition, 
2010. Each TSS has also been codified in the CFR since January 12, 
2011, when the interim rule became effective. For a full discussion of 
the basis and purpose of this rulemaking see the interim rule (75 FR 
77529, 77530).

IV. Discussion of Comments and Changes

    We received no public comments in response to our interim rule. 
Accordingly, the Coast Guard has made no changes in this final rule. A 
full discussion of the provisions of this rule may be found in the 
``Discussion of Interim Rule'' section of the interim rule. (75 FR 
77529, at 77531).

V. Regulatory Analyses

    We developed this final rule after considering numerous statutes 
and executive orders related to rulemaking. We summarize our analyses 
based on 13 of these statutes or executive orders in the paragraphs 
that follow.

A. 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.
    As previously discussed, the TSSs finalized by this final rule were 
codified by the interim rule, implemented by IMO, and are reflected on 
current nautical charts and in nautical publications. We anticipate no 
increased costs for vessels traveling within the aforementioned areas. 
These internationally recognized traffic separation schemes provide 
better routing order and predictability, increase maritime safety, and 
reduce the potential for collisions, groundings, and hazardous cargo 
spills.
    By finalizing the interim rule we complete the process of recording 
the latitudes and longitudes of the TSSs' coordinates in the CFR tables 
and make it easier for the public to reference our regulations when 
recommending modifications or other operational considerations. This 
rule finalizes incorporation of the TSSs in the CFR and does not impact 
mariner actions or expectations.

B. Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this final rule has 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.
    As this rule serves to finalize in the CFR TSSs that have already 
been implemented, we estimate that there will be no increased costs due 
to this rule.
    Therefore, the Coast Guard certifies, under 5 U.S.C. 605(b), that 
this final rule does not have a significant economic impact on a 
substantial number of small entities.

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    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule will have a 
significant economic impact on it, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why you think it qualifies and how and to what degree 
this rule would economically affect it.

C. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If you believe 
this rule affects your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please consult Mr. George Detweiler, Office of 
Navigation Systems, telephone 202-372-1566. The U.S. Coast Guard will 
not retaliate against small entities that question or complain about 
this rule or any policy or action of the U.S. Coast Guard.

D. 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).

E. 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 has federalism implications. Conflict preemption principles 
apply to PWSA Title I, and the TSSs in this rule are issued under the 
authority of PWSA Title I. These TSSs are specifically intended to have 
preemptive impact over State law covering the same subject matter in 
the same geographic area.
    Title I of PWSA (33 U.S.C. 1221 et seq.) authorizes the Secretary 
to issue regulations to designate TSSs to provide safe access routes 
for the movement of vessel traffic proceeding to or from ports or 
places subject to the jurisdiction of the United States. In enacting 
the PWSA in 1972, Congress found that advance planning and consultation 
with the affected States and other stakeholders was necessary in the 
development and implementation of a TSS. Throughout the history of the 
development of the TSSs that are the subject of this rule, we have 
sought input from the public and consulted with the affected State and 
Federal pilots' associations, vessel operators, users, environmental 
advocacy groups, and all affected stakeholders.
    Presently, there are no state laws or regulations in the States 
affected by this rule concerning the same subjects as those contained 
in this rule. We understand that the affected States do not contemplate 
issuing any such regulations. It should be noted that, by virtue of the 
PWSA authority, the TSSs in this rule preempt any State rule on the 
same subject.
    Foreign vessel owners and operators usually become aware of TSSs 
when the TSSs are added to the United States Coast Pilot and the 
nautical charts that are required by 33 CFR 164.33 to be on each ship 
operating in U.S. waters. Foreign vessel owners and operators also 
become aware of TSSs through their national IMO delegation and IMO 
publications.
    The individual States of the United States are not represented at 
the IMO as that is the role of the Federal Government. The U.S. Coast 
Guard is the principal agency responsible for advancing the interests 
of the United States at the IMO. In this role, we solicit comments from 
the stakeholders through public meetings and develop a unified U.S. 
position prior to attending sessions of the IMO Subcommittee on Safety 
of Navigation and the Maritime Safety Committee where TSSs are 
discussed.

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

G. 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.

H. 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.

I. 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.

J. Indian Tribal Governments

    We have reviewed this rule under Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments. 
Rulemakings that are determined to have ``tribal implications'' under 
that Order (i.e., those that 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) require the 
preparation of a tribal summary impact statement. This rule will not 
have implications of the kind envisioned under the Order because it 
will not impose substantial direct compliance costs on tribal 
governments, preempt tribal law, or substantially affect lands or 
rights held exclusively by, or on behalf of, those governments.
    Whether or not the Executive Order applies in this case, it is the 
policy of the Department of Homeland Security and the U.S. Coast Guard 
to engage in meaningful consultation and collaboration with tribal 
officials in policy decisions that have tribal implications under the 
Presidential Memorandum of November 5, 2009, (74 FR 57881, November 9, 
2009), and to seek out and consult with Native Americans on all of its 
rulemakings that may affect them.

K. 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.

[[Page 23196]]

L. Technical Standards

    The National Technology Transfer and Advancement Act (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, nor is the Coast Guard 
aware of the existence of any standards that address these TSSs. 
Therefore, we did not consider the use of voluntary consensus 
standards.

M. 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 
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 rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(i) of the Instruction. This rule involves 
navigational aids, which include TSSs. An environmental analysis 
checklist and a categorical exclusion determination are available in 
the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 167

    Harbors, Marine safety, Navigation (water), Waterways.

    Accordingly, the interim rule amending 33 CFR part 167, subpart B, 
which was published at 75 FR 77529 on December 13, 2010, is adopted as 
a final rule.

    Dated: April 4, 2011.
Dana A. Goward,
U.S. Coast Guard, Director of Marine Transportation Systems Management.
[FR Doc. 2011-9892 Filed 4-25-11; 8:45 am]
BILLING CODE 9110-04-P

