[Federal Register Volume 63, Number 126 (Wednesday, July 1, 1998)]
[Rules and Regulations]
[Pages 35826-35828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17396]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
36 CFR Part 327
Shoreline Use Permits, Flotation
AGENCY: U.S. Army Corps of Engineers.
ACTION: Final rule.
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SUMMARY:An amendment to Appendix A section 327.30 ``Guidelines for
Granting Shoreline Use Permits'' was part of a proposed rule published
in the Federal Register on April 15, 1997. The language in this
amendment reduced the burdensome requirements on individuals who have
requested waivers because of limiting health conditions. The amendment
gives Operations Managers the flexibility to take special circumstances
of the applicant into consideration when issuing a shoreline use
permit. This amendment is also in this final rule.
The U.S. Army Corps of Engineers also published a proposed rule in
the April 15, 1997, issue of the Federal Register, to amend Appendix C
of Section 327.30. The amendment concerned flotation materials to be
used on all new docks and boat mooring buoys. Comments received during
the 45-day comment period prompted the Corps to conduct further studies
and withdraw the proposed rule to amend Appendix C issued on April 15,
1997. Subsequently, a replacement rule was published in the Federal
Register on December 4, 1997. Comments were accepted on this proposed
revision until January 20, 1998. This final rule reflects the comments
received. We believe that the changes will substantially increase the
safety of project visitors and the protection of the natural resources.
EFFECTIVE DATE: August 17, 1998.
FOR FURTHER INFORMATION CONTACT: Mr. Darrell E. Lewis, (202) 761-0247.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Army Corps of Engineers published a final rule providing
policy and guidance on the management of shorelines of Corps managed
Civil Works projects in the Federal Register on July 27, 1990 (55 FR
30690-30702), last amended in the Federal Register on July 1, 1992 (57
FR 29219-29220).
Two amendments to the regulations were published as a proposed rule
in the Federal Register on April 15, 1997 (62 FR 18307-18308). An
amendment to Paragraph 2.c.(9) of Appendix A, Section 327.30,
Guidelines for Granting Shoreline Use Permits, gave Operations Managers
the flexibility to take special circumstances of the applicant into
consideration when issuing a permit. This language reflected the Corps
desire to accommodate basic access for those individuals who have
requested waivers because of limiting health conditions that are either
obvious or substantiated by a doctor's certification. No negative
comments were received regarding this amendment during the comment
period.
Paragraph 14, Appendix C, of Section 327.30, also published as a
proposed rule on April 15, 1997, reflected the Corps amended flotation
requirements for all new docks and boat mooring facilities. The Corps
received 28 letters concerning flotation during the comment period of
this proposed rulemaking. The comments prompted the Corps to conduct
further studies and give additional consideration to flotation
requirements. Accordingly, the flotation portion of the proposed rule
published on April 15, 1997, was withdrawn and was subsequently
[[Page 35827]]
replaced by a new proposed rule published in the Federal Register on
December 4, 1997. Twelve comments were received on the new proposed
rule change and are summarized below.
Discussion of Public Comments and Changes
I. Definition of terms
Many of the comments received asked for specific definitions as
they relate to the final rule. Those definitions are as follows:
1. Waterlogged--This term means saturated with water to the point
of sogginess or loss of buoyancy. Although all floatation materials
absorb water to some degree (unless they are completely encased), they
do not all lose buoyancy and become waterlogged at the same rate.
Flotation that is not watertight will become progressively heavier and
more waterlogged over time. At some point, these floats no longer meet
the specifications for flotation as originally designed. Floats with
air as a flotation media become waterlogged as soon as they are
punctured or cracked, sinking almost immediately after enough chambers
are penetrated.
2. Crack, peel, fragment--These terms refer to plastic, fiberglass,
or concrete encasements or coatings. Some of these encasements may
contain hairline cracks. Although these small cracks (and some larger
ones) do not affect the structural integrity of the float if it is
filled with good foam, some encasements have more than one gap or
opening. Once filled with water, these cracks can expand and allow
beads to enter the water. In the case of peeling and fragmenting, the
same situation occurs when a portion of the encasement becomes
dislodged and allows for the entrance of beads or other flotation
material into the water.
3. Resistant to puncture and penetration--This phrase means that
the float or its flotation will withstand the intended use under
ordinary circumstances. Because waves cause floats to rise and fall
along the shoreline, these floats are expected to withstand the daily
beating from waves, submerged obstacles such as small rocks or snags in
the area, daily bumps of boats or other recreational vessels, as well
the normal extremes in weather conditions encountered in the area.
When dealing primarily with floats that use air chambers as the
means of flotation, these floats take on water and sink when enough
chambers are punctured or penetrated. When dealing with floats using
bead flotation, punctures and other forms of penetration could allow
the beads to escape into the water and then allow water to enter the
encasement, eventually causing failure of the float.
4. Damage by animals--Animals and/or waterfowl sometimes burrow
into beaded or foam flotation materials to escape the weather or for
nesting. Any flotation material should be encased with material that is
strong enough and thick enough to prevent intrusion by animals under
normal circumstances.
5. Fire resistant--This term means able to resist fire and not
readily combustible. It does not mean ``fire proof''. Flotation that is
fire resistant must not be made of materials that will heighten or
intensify an existing fire.
6. Severely deteriorated and no longer serviceable--This phrase
means that there is significant damage to the float or its flotation
(including taking on excess water or releasing beads), the float or its
flotation no longer performs its designated function, or the float or
its flotation fails to meet the specifications for which it was
originally warranted. In addition, ``no longer serviceable'' means the
float or its flotation material can no longer be repaired so that it
performs its designated function or it fails to meet the specifications
for which is was originally warranted.
7. No longer performing its designated function--This means that a
float no longer can be used for its originally intended purpose as a
result of damage or deterioration or that the float cannot be used
without creating safety hazards for the recreating public.
8. Marine use--This term means that use which is related to
navigation or water-based activities.
II. Use of Drums or Barrels
Objections were received to eliminating recycled 55-gallon drums,
either metal or plastic, as floats. Some respondents stated that if
these containers could not be recycled and used as floats, proper
disposal was difficult. Others objected because of the cost involved
with obtaining other types of floats. Another comment stated that if
barrels did become punctured, they were easily replaced with new ones.
There are many problems associated with the use of drums, barrels,
or other containers. One of the major problems is that these items can
be punctured or cracked through ordinary use. Not all drums or barrels
are manufactured to universally agreed-upon standard specifications.
Once the integrity of the drum or barrel has been compromised, any
remaining contents left in them will mix with water and be disseminated
in the area, spreading possible contamination.
Secondly, 55-gallon drums easily break away from docks. Because
drums cannot be through-bolted to the dock they normally float in the
water under the dock sometimes within a supporting confinement
structure. When these barrels become partially filled with water, they
float at or just below the water surface and sometimes come out from
within the confinement structure. As a result, these drums float free
and are a hazard to boaters, water skiers, and other recreational
users.
Lastly, when the drums do partially fill with water and sink, they
can cause considerable damage to dam mechanisms, water intakes,
pipelines, and other water control structures. Even if these drums are
filled with polyurethane foam, they can still break loose and may sink
or partially sink as a result of the water's displacement of the air
within the voids.
Several comments asked for the use of tires as a form of
encasement. The problem with tires is not their composition; instead,
the problem is how they truly function as encasements. If the exposed
extruded polystyrene portion of the flotation must be further encased
by plywood or some other material, there are several problems that must
be addressed. Any misshaping of the tire could result in a ``non-
contact'' spot which would allow the entrance of water, thus altering
the buoyancy of the float. If the plywood encasements are through-
bolted, cracks in the wood around the bolts may occur which, again,
could decrease the performance of the float. In addition, the wood
around the bolts is more susceptible to rot, thus affecting the
integrity of the float.
III. Specific Standards
Some comments indicated that the standards, as written, were not
specific enough and that subjective requirements should be avoided. The
standards were written to provide a framework for identifying
measurable outcomes, focusing on results achieved rather than on strict
specifications. Exact standards for thickness and density were not
included for this reason. To include such restrictions would make the
standards more limiting than necessary. As technologies advance and new
and better forms of floats and flotation material are formulated, it
may be unnecessary to meet such strict guidelines set by using today's
technology.
IV. Open bead polystyrene
Several comments were received stating that if the Corps intends to
not allow any flotation material made of
[[Page 35828]]
unprotected open bead polystyrene products, such a statement should be
made outright in the new standards. Again, the standards were written
to provide a framework for identifying measurable outcomes. If
unprotected open bead polystyrene does not meet the standards as
written, it cannot be allowed as flotation. Whether it is mentioned
specifically in the standards or not is irrelevant.
V. Fire Resistance
Several comments were received regarding the fire resistance
requirements for floats and flotation. One stated that although some
encasements, such as wood and plywood, support combustion, most
encasements are not known to feed fires. In fact, most fires start on
boats and spread to the docks.
The purpose of the ``fire resistant'' statement is to ensure that
the encasement or its flotation material is not constructed of a
material that would heighten or intensify an existing fire. This
requirement does not mean ``fire proof'' or ``non-combustible.'' In
addition, the float and its flotation material must be resistant to
combustion when either comes in direct contact with petroleum products.
Procedural Requirements
Executive Order (E.O.) 12866
The Secretary of the Army has determined that this final rule is
not a ``major'' rule within the meanng of Executive Order (E.O.) 12866.
This final rule will not (1) have an annual effect on the economy of
$100 million or more; (2) cause a major increase in costs or prices for
consumers, individual industries, geographic regions; or (3) have
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of a United States-based
enterprise to compete with foreign-based enterprise in domestic or
export markets.
Regulatory Flexibility Act
This final rule will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.).
Collection of Information
This final rule contains no collection of information under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Executive Order 12612
The Corps has analyzed this final rule under principles and
criteria in E.O. 12612 and has determined that this final rule does not
have sufficient Federalism implications to warrant preparation of a
Federalism Assessment.
Executive Order 12630
The Corps has determined that this final rule does not have
``significant'' taking implications. The final rule does not pertain to
taking of private property interests, nor does it impact private
property.
NEPA Statement
The Corps has determined that this final rule does not constitute a
major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969.
Unfunded Mandates Act of 1995
The final rule imposes no unfunded mandates on any governmental or
private entity and is in compliance with the provisions of the Unfunded
Mandates Act of 1995.
List of Subjects in 36 CFR Part 327
Public lands, Shoreline management.
For the reasons set forth in the preamble, 36 CFR part 327, is
amended as follows:
36 CFR PART 327, RULES AND REGULATIONS GOVERNING PUBLIC USE OF
WATER RESOURCE DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF
ENGINEERS
1. The authority citation for 36 CFR part 327 continues to read as
follows:
Authority: 16 U.S.C. 460d and 460l-6a.
2. Appendix A to Sec. 327.30 is amended by revising paragraph 2c(9)
as follows:
Appendix A to Sec. 327.30--Guidelines for Granting Shoreline Use
Permits
* * * * *
2. * * *
c. * * *
(9) The district commander or his/her authorized representative
may place special conditions on the permit when deemed necessary.
Requests for waivers of shoreline management plan permit conditions
based on health conditions will be reviewed on a case by case basis
by the Operations Manager. Efforts will be made to reduce onerous
requirements when a limiting health condition is obvious or when an
applicant provides a doctor's certification of need for conditions
which are not obvious.
* * * * *
3. Appendix C to Sec. 327.30 is amended by revising paragraph 14,
to read as follows:
Appendix C to Sec. 327.30--Shoreline Use Permit Conditions
* * * * * *
14. Floats and the flotation material for all docks and boat
mooring buoys shall be fabricated of materials manufactured for
marine use. The float and its flotation material shall be 100%
warranted for a minimum of 8 years against sinking, becoming
waterlogged, cracking, peeling, fragmenting, or losing beads. All
floats shall resist puncture and penetration and shall not be
subject to damage by animals under normal conditions for the area.
All floats and the flotation material used in them shall be fire
resistant. Any float which is within 40 feet of a line carrying fuel
shall be 100% impervious to water and fuel. The use of new or
recycled plastic or metal drums or non-compartmentalized air
containers for encasement or floats is prohibited. Existing floats
are authorized until it or its flotation material is no longer
serviceable, at which time it shall be replaced with a float that
meets the conditions listed above. For any floats installed after
the effective date of this specification, repair or replacement
shall be required when it or its flotation material no longer
performs its designated function or it fails to meet the
specifications for which it was originally warranted.
* * * * * *
Dated: June 23, 1998.
Robert W. Burkhardt,
Colonel, Corps of Engineers, Executive Director or Civil Works.
[FR Doc. 98-17396 Filed 6-30-98; 8:45 am]
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