[Federal Register Volume 74, Number 172 (Tuesday, September 8, 2009)]
[Rules and Regulations]
[Pages 46007-46010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21435]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket No. USCG-2008-0047]
RIN 1625-AA01


Anchorage Regulations; Port of New York and Vicinity

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending the existing special anchorage 
area at Perth Amboy, New Jersey, at the junction of the Raritan River 
and Arthur Kill. This action is necessary to facilitate safe navigation 
and provide for a safe and secure anchorage for vessels of not more 
than 20 meters in length. This action is intended to increase the 
safety of life and property on the Raritan River and Arthur Kill, 
improve the safety of anchored vessels, and provide for the overall 
safe and efficient flow of vessel traffic and commerce.

DATES: This rule is effective October 8, 2009.

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-2008-0047 and are available online by going to 
http://

[[Page 46008]]

www.regulations.gov, inserting ``USCG-2008-0047'' in the ``Keyword'' 
box, and pressing ``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 Mr. Jeff Yunker, Waterways Management Division, Coast 
Guard, telephone 718-354-4195, e-mail <a href="/cdn-cgi/l/email-protection#72381714145c3f5c2b071c19170032070111155c1f1b1e"><span class="__cf_email__" data-cfemail="440e2122226a096a1d312a2f213604313727236a292d28">[email protected]</span></a>. 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 May 8, 2008, the Coast Guard published in the Federal Register a 
notice of proposed rulemaking (NPRM) entitled ``Anchorage Regulations; 
Port of New York and Vicinity'' (73 FR 26054). We received two letters 
commenting on the proposed rule, both of which stated the geographic 
coordinates appeared to be incorrect. One of the commenters suggested 
additional revisions to the proposed rule and requested a public 
meeting in the event the Coast Guard decided not to make the changes 
suggested. No public meeting was held, as the Coast Guard incorporated 
the commenter's suggestions in a supplemental notice of proposed 
rulemaking (SNPRM) published on April 2, 2009 (74 FR 14938). We 
received one letter commenting on the SNPRM. After publication of the 
SNPRM, no public meeting was requested and none was held.

Background and Purpose

    During times of tidal shifts, vessels moored near the edge of this 
special anchorage area were found swinging out into the Raritan River 
Cutoff and the Raritan River Federal Channels. Since moored vessels in 
a special anchorage area are exempt from the Inland Rules of the Road 
[Rule 30 (33 U.S.C 2030) and Rule 35 (33 U.S.C. 2035)], vessels 
swinging out into these Federal Channels create a high risk of 
collision with larger commercial vessels that transit past this special 
anchorage area, especially at night and during times of inclement 
weather. Also, when larger commercial vessels maneuver to avoid a 
collision with recreation vessels that swing out into these channels it 
creates a hazardous, close-quarters passing situation with other larger 
commercial vessels operating within these Federal Channels.
    On May 8, 2008, the Coast Guard published a notice of proposed 
rulemaking (NPRM) titled ``Anchorage Regulations; Port of New York and 
Vicinity'' in the Federal Register (73 FR 26054). That NPRM contained 
incorrect coordinates. Therefore, on April 2, 2009, the Coast Guard 
published a supplemental notice of proposed rulemaking (SNPRM) titled 
``Anchorage Regulations; Port of New York and Vicinity'' (74 FR 14938). 
In that SNPRM, the Coast Guard corrected the coordinates and also 
incorporated suggestions made in comments on the May 2008 NPRM. 
Specifically, the Coast Guard proposed to expand the northern boundary 
of the special anchorage area, explained its decision not to require an 
additional buffer zone between moored vessels and the Federal Channel, 
proposed a revised prohibition on use of mooring piles or stakes, and 
proposed revised contact information provided for the Fleet Captain of 
the Raritan Yacht Club.
    The Coast Guard received one letter commenting on the SNPRM. Those 
comments are discussed below.

Discussion of Comments and Changes

    The Coast Guard received one letter commenting on the SNPRM. The 
commenter requested that only the Raritan Yacht Club main telephone 
number (732-826-2277) or VHF Channel 9 be published for mooring 
placement requests, and that the other telephone number be removed 
because it is a personal number. Additionally, due to revisions made to 
the NPRM, the commenter withdrew the previous request for a public 
hearing. The Coast Guard agrees with these comments. The contact 
information in the regulation will be revised to reflect this comment.

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.

Regulatory Planning and Review

    This 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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. This finding is based on the 
fact that this rule requires recreational vessels to anchor a greater 
distance from the Raritan River Cutoff and Raritan River Federal 
Channels. As displayed on the government navigation charts, the current 
boundaries of the special anchorage area and adjacent Federal Channels 
nearly overlap. This rule greatly reduces the possibility of marine 
casualties, pollution incidents, or human fatalities that could be 
caused by these recreational vessels anchoring within, or near, the 
Federal Channels and causing a collision with any of the approximately 
5,000 commercial vessels that transit the Raritan River Cutoff Channel 
on an annual basis. Vessel transit statistics from the ACOE Navigation 
Data Center are available online at: http://www.iwr.usace.army.mil/ndc/wcsc/wcsc.htm. Additionally, vessels are still able to anchor in an 
area approximately 850 to 1,050 yards wide by 480 to 980 yards long off 
the southern Perth Amboy shoreline.

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 will affect the following entities, some of which might 
be small entities: the owners or operators of recreational vessels 
intending to anchor immediately adjacent to Raritan River Cutoff and 
Raritan River Federal Channels, which could cause a marine casualty, 
pollution incident, or human fatality due to a commercial vessel 
colliding with the anchored or moored recreational vessel(s). This rule 
will also affect commercial vessels by reducing the possibility that 
they will encounter hazardous, close-quarters passing conditions 
created by recreational vessels within the channels. However, the 
requirements contained within the rule will not have a significant 
economic impact on these entities for the following reasons: the 
revised special anchorage area requires vessels

[[Page 46009]]

to moor, or anchor, at a greater distance from the Raritan River and 
Raritan River Cutoff Federal Channels, reducing the threat of collision 
with vessels transiting the adjacent Federal Channel. This special 
anchorage area was never designed to authorize vessels to anchor, or 
moor, in a manner where they would extend into the Federal Channel 
creating a hazard to navigation. Additionally, vessels will still be 
able to anchor in an area approximately 850 to 1,050 yards wide by 480 
to 980 yards long off the southern Perth Amboy shoreline.
    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), in the SNPRM 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 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 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 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 which 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. This rule involves the expansion of a Special 
Anchorage Area. This rule fits the category selected from paragraph 
34(f) as it is a Special Anchorage Area. 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 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;

[[Page 46010]]

Department of Homeland Security Delegation No. 0170.1.

0
2. Revise Sec.  110.60(d)(10) to read as follows:


Sec.  110.60  Captain of the Port, New York.

* * * * *
    (d) * * *
    (10) Perth Amboy, NJ. All waters bound by the following points: 
40[deg]30[min]26.00[sec] N, 074[deg]15[min]42.00[sec] W; thence to 
40[deg]30[min]24.29[sec] N, 074[deg]15[min]35.20[sec] W; thence to 
40[deg]30[min]02.79[sec] N, 074[deg]15[min]44.16[sec] W; thence to 
40[deg]29[min]35.70[sec] N, 074[deg]16[min]08.88[sec] W; thence to 
40[deg]29[min]31.00[sec] N, 074[deg]16[min]20.75[sec] W; thence to 
40[deg]29[min]47.26[sec] N, 074[deg]16[min]49.82[sec] W; thence to 
40[deg]30[min]02.00[sec] N, 074[deg]16[min]41.00[sec] W, thence along 
the shoreline to the point of origin.
    (i) This area is limited to vessels no greater than 20 meters in 
length and is primarily for use by recreational craft on a seasonal or 
transient basis. These regulations do not prohibit the placement of 
moorings within the anchorage area, but requests for the placement of 
moorings should be directed to the Raritan Yacht Club Fleet Captain 
(telephone 732-826-2277 or VHF Channel 9) to ensure compliance with 
local and State laws. All moorings shall be so placed that no vessel, 
when anchored, will at any time extend beyond the limits of the area. 
Fixed mooring piles or stakes are prohibited seaward of the pier head 
line. Mariners are encouraged to contact the Raritan Yacht Club Fleet 
Captain for any additional ordinances or laws and to ensure compliance 
with additional applicable State and local laws.
    (ii) [Reserved]
* * * * *

    Dated: July 30, 2009.
J.L. Nimmich,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-21435 Filed 9-4-09; 8:45 am]
BILLING CODE 4910-15-P


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