[Federal Register Volume 75, Number 237 (Friday, December 10, 2010)]
[Proposed Rules]
[Pages 76943-76946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-31118]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0794]
RIN 1625-AA11


Regulated Navigation Area; Hudson River South of the Troy Locks, 
NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a Regulated Navigation 
Area (RNA) on the navigable waters of the Hudson River in New York, 
south of the Troy Locks. This action is necessary to promote 
navigational safety, provide for the safety of life and property, and 
facilitate the reasonable demands of commerce. This action would impose 
restrictions on vessels operating within the waters of the Hudson River 
south of the Troy Locks when ice is a threat to navigation.

DATES: Comments and related material must be received by the Coast 
Guard on or before January 10, 2011. Requests for public meetings must 
be received by the Coast Guard on or before December 27, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-0794 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.

[[Page 76944]]

    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail Chief Warrant Officer Kary Moss, Coast Guard 
Sector New York Waterways Management Division; telephone 718-354-4117, 
e-mail <a href="/cdn-cgi/l/email-protection#90dbf1e2e9bedcbeddffe3e3d0e5e3f3f7befdf9fc"><span class="__cf_email__" data-cfemail="561d37242f781a781b3925251623253531783b3f3a">[email protected]</span></a>. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2010-0794), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail, or hand 
delivery, but please use only one of these means. If you submit a 
comment online via http://www.regulations.gov, it will be considered 
received by the Coast Guard when you successfully transmit the comment. 
If you fax, hand deliver, or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rule'' and insert ``USCG-2010-0794'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit your comments by mail or hand delivery, submit 
them in an unbound format, no larger than 8[frac12] by 11 inches, 
suitable for copying and electronic filing. If you submit comments by 
mail and would like to know that they reached the Facility, please 
enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period 
and may change the rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2010-0794'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before December 27, 2010 using one of the four 
methods specified under ADDRESSES. Please explain why you believe a 
public meeting would be beneficial. If we determine that one would aid 
this rulemaking, we will hold one at a time and place announced by a 
later notice in the Federal Register.

Basis and Purpose

    Historically ice has been an impediment to navigation during 
certain times of the year on the navigable waters of the Hudson River 
south of the Troy Locks. West Point, Crum Elbow, Esopus Meadows, 
Stuyvesant Anchorage, Hudson Anchorage, Silver Point, and Hyde Park are 
all natural choke points on the Hudson River where ice buildup has the 
potential to severely restrict vessel traffic.
    There are several situations faced by vessels during severe winter 
conditions that can place the vessels, passengers, and crew in great 
danger including being beset in the ice and ice accretion, where ice 
forms on the superstructure and decks of transiting vessels thereby 
affecting the vessel's stability. Ice may also cause significant damage 
to propellers, rudders, and hull plating.
    The formation of ice on the Hudson River is subject to many 
variables and is not consistent from year to year. During a moderate or 
severe winter, the frozen waterways may impede a vessel's ability to 
maneuver. Once ice build-up begins it can affect the transit of vessels 
on the navigable waterways. In addition a vessel's watertight integrity 
may also be compromised by ice abrasion and ice pressure on the 
vessel's hull.
    Ice floes on the navigable waterways may also cause visual aids to 
navigation to become submerged, destroyed, or moved off station. Ice 
conditions on the navigable waterways may create hazardous conditions 
in which the operations of certain vessels become unsafe.
    Previous ice seasons have shown that vessels with less than 3000 
horsepower, while engaged in towing operations, have significant 
difficulty transiting the Hudson River in locations where ice thickness 
is on average eight inches or greater. This difficulty in transiting 
the Hudson River during ice buildup poses a safety threat to the 
environment and a potential hazard to navigation.
    It sometimes becomes necessary to impose operating restrictions to 
ensure the safe navigation of vessels. During the 2009-2010 ice 
navigation season the Coast Guard promulgated a Temporary Final Rule 
that established an RNA for that period. That rule established 
restrictions similar to those that the Coast Guard proposes in this 
rule. This proposed rule allows the Coast Guard to restrict and manage 
vessel movement when hazardous ice conditions exist within a specified 
area of the Hudson River.

[[Page 76945]]

Discussion of Proposed Rule

    The Coast Guard proposes to establish a Regulated Navigation Area 
on the navigable waters of the Hudson River south of the Troy Locks. 
The Regulated Navigation Area is intended to restrict vessels with less 
than 3000 horsepower (HP) engaged in towing operations from operating 
on the Hudson River south of the Troy Locks when ice thickness is on 
average eight inches or greater, unless authorized by the Captain of 
the Port (COTP) New York or a designated representative.
    The COTP New York will notify mariners of the location and 
thickness of the ice as well as any restrictions via marine broadcast, 
Local Notices to Mariners, and VTS New York. For the purpose of this 
rule, the definition of horsepower in 46 CFR 10.107 applies.
    When the ice thickness reaches an average of eight inches or 
greater on the Hudson River along reported routes, vessels of less than 
3,000 HP engaged in towing operations would not be authorized to 
transit unless in conjunction with scheduled Coast Guard icebreaking 
operations in the area, or operating with an assist tug or as part of a 
convoy, or specifically authorized by the COTP New York.
    Operators of vessels that do not meet the criteria of the operating 
restrictions, but who believe that they have the capability to operate 
in ice safely, may seek a waiver from the COTP New York to continue 
operating. Waivers may be requested by calling telephone number (718) 
354-4356 or on VHF channel 13 or 16.

Regulatory Analyses

    We developed this proposed 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.

Regulatory Planning and Review

    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.
    The Coast Guard's implementation of the proposed Regulated 
Navigation Area will only be enforced at the location on the navigable 
waters of the Hudson River south of the Troy Locks where ice conditions 
on average are eight inches or greater, and only restrict vessels that 
are less than 3,000 horsepower while engaged in towing operations.
    Before the effective period, the Coast Guard will issue maritime 
advisories widely available to users of the navigable waters of the 
Hudson River. Furthermore, vessels affected by this restriction may be 
authorized to transit the zone with permission of the Captain of the 
Port New York. Requests to transit may be made by calling telephone 
number (718) 354-4356 or on VHF channel 13 or 16.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This proposed rule will affect the following 
entities, some of which may be small entities: The owners and operators 
of tugs with engines below 3,000 total horsepower attempting to transit 
the Hudson River in cold weather months when ice thickness is on 
average eight inches or greater.
    This RNA would not have a significant economic impact on a 
substantial number of small entities for the following reasons: Tugs 
with less than 3,000 total horsepower have historically been unable to 
transit the Hudson River when ice thickness is on average eight inches 
or greater. Operators have generally taken these vessels out of service 
or use vessels that are capable of operating in such conditions. Before 
the effective period, the Coast Guard will issue maritime advisories 
widely available to users of the river.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub.L. 104-121), we want to assist small entities 
in understanding this proposed rule so that they can better evaluate 
its effects on them and participate in the rulemaking. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, contact CWO Kary Moss at 718-354-4117. The 
Coast Guard will not retaliate against small entities that question or 
complain about this proposed rule or any policy or action of the Coast 
Guard.

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 proposed 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 (adjusted for 
inflation) or more in any one year. Though this proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically

[[Page 76946]]

significant rule and would not create an environmental risk to health 
or risk to safety that might 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 would 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. 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 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 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 made a preliminary determination that this action is one of a 
category of actions that do not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES. This proposed 
rule involves establishing a Regulated Navigation Area restricting tugs 
with less than 3,000 total horsepower from transiting the Hudson River 
when ice thickness is on average eight inches or greater. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    1. The authority citation for part 165 continues to read as 
follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. Add Sec.  165.165 to read as follows:


Sec.  165.165  Regulated Navigation Area; Hudson River south of the 
Troy Locks, New York.

    (a) Regulated navigation area. All navigable waters of the Hudson 
River south of the Troy Locks.
    (b) Definitions. The following definitions apply to this section:
    (1) Designated representative means any Coast Guard commissioned, 
warrant, or petty officer, or a Federal, State, or local law 
enforcement officer designated by or assisting the Captain of the Port 
(COTP) New York.
    (2) Horsepower (HP) means the total maximum continuous shaft 
horsepower of all the vessel's main propulsion machinery.
    (c) Applicability. This section applies to tugs with less than 
3,000 horsepower when engaged in towing operations.
    (d) Regulations. (1) Except as provided in paragraph (c)(3) of this 
section, vessels less than 3,000 horsepower while engaged in towing 
operations are not authorized to transit that portion of the Hudson 
River south of the Troy Locks when ice thickness on average is eight 
inches or greater.
    (2) All Coast Guard assets enforcing this Regulated Navigation Area 
can be contacted on VHF marine band radio, channel 13 or 16. The COTP 
can be contacted at (718) 354-4356, and the public may contact the COTP 
to suggest changes or improvements in the terms of this Regulated 
Navigation Area.
    (3) All persons desiring to transit through a portion of the 
regulated area that has operating restrictions in effect must contact 
the COTP at telephone number (718) 354-4356 or on VHF channel 13 or 16 
to seek permission prior to transiting the affected regulated area.
    (4) The COTP will notify the public of any changes in the status of 
this Regulated Navigation Area by Marine Safety Information Broadcast 
on VHF-FM marine band radio, channel 22A (157.1 MHZ).

    Dated: November 29, 2010.
Daniel A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2010-31118 Filed 12-9-10; 8:45 am]
BILLING CODE 9110-04-P


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