[Federal Register Volume 76, Number 163 (Tuesday, August 23, 2011)]
[Rules and Regulations]
[Pages 52569-52572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21460]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0727]
RIN 1625-AA11


Regulated Navigation Area; Arthur Kill, NY and NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area 
(RNA) on the navigable waters of the Arthur Kill in New York and New 
Jersey. This temporary interim rule is necessary to enhance navigation, 
vessel safety, marine environmental protection, and provide for the 
safety of life on the navigable waters during drilling, blasting and 
dredging operations in support of the U.S. Army Corps of Engineers 
channel deepening project. We seek comments regarding this rule and 
will consider those comments before issuing a final rule.

DATES: This rule is effective in the CFR on August 23, 2011 until 5 
p.m. on April 1, 2014. This rule is effective with actual notice for 
purposes of enforcement from 8 a.m. on August 12, 2011 until 5 p.m. on 
April 1, 2014. Comments and related material must reach the Coast Guard 
on or before September 22, 2011 but will be accepted and reviewed by 
the Coast Guard through April 1, 2014, that is, for as long as the RNA 
is in place.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-0727 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (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 interim 
rule, call or e-mail Mr. Jeff Yunker, U.S. Coast Guard Sector New York 
Waterways Management Division, Coast Guard; telephone 718-354-4195, e-
mail <a href="/cdn-cgi/l/email-protection#400a2526266e0d6e19352e2b253200353323276e2d292c"><span class="__cf_email__" data-cfemail="8ec4ebe8e8a0c3a0d7fbe0e5ebfccefbfdede9a0e3e7e2">[email protected]</span></a>, or Lieutenant Junior Grade Isaac Slavitt, 
Coast Guard First District Waterways Management Branch, telephone 617-
223-8385, e-mail <a href="/cdn-cgi/l/email-protection#8ec7fdefefeda0c3a0dde2eff8e7fafacefbfdede9a0e3e7e2"><span class="__cf_email__" data-cfemail="fcb58f9d9d9fd2b1d2af909d8a958888bc898f9f9bd2919590">[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.
    As this interim rule will be in effect before the end of the 
comment period, the Coast Guard will evaluate and revise this rule as 
necessary to address significant public comments. Alternatively, if the 
dredging project necessitating the interim rule is completed before 
April 1, 2014, and we receive no public comments that indicate a 
substantive need to revise the rule, we may allow it to expire on that 
date without further regulatory action.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-0727), 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 delivery or mail your comment, it will be considered 
as having been received by the Coast Guard when it is received at

[[Page 52570]]

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-2011-0727'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit comments by mail or hand delivery, submit them in 
an unbound format, no larger than 8\1/2\ 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 will consider those 
comments before issuing a final rule.

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-2011-0727'' 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 within the meaning of 
the Administrative Procedure Act (APA), 5 U.S.C. 553. But you may 
submit a request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe such 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. The Coast Guard has held or participated in fourteen 
locally announced informal waterway user meetings where waterway 
closures and restrictions were discussed. We anticipate holding 
additional informal meetings, with opportunity for public questions or 
comments, during this project. We will provide written summaries of any 
such meetings in the docket.

Regulatory Information

    The Coast Guard is issuing this interim rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the APA, 5 U.S.C. 553(b). This provision authorizes an agency to issue 
a rule without prior notice and opportunity to comment when the agency 
for good cause finds that those procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' Under 5 U.S.C. 
553(b)(B), the Coast Guard finds that good cause exists for not 
publishing a notice of proposed rulemaking (NPRM) with respect to this 
rule because immediate action is necessary to ensure the safety of the 
public in the vicinity of the drilling, dredging and blasting 
operations being conducted in the Arthur Kill. In November 2010, 
Northeast Dredging Company, the contractor, advised that the Arthur 
Kill Channel Deepening Project would require rolling two-week closures 
of the middle third of the Arthur Kill to conduct the drilling and 
blasting operations. The requested closure of the Arthur Kill would 
have shut down the Arthur Kill to all deep draft vessels in the area 
resulting in a long term disruption to cargo and oil terminal 
facilities operations. We advised the U.S. Army Corps of Engineers 
(USACE) and the contractor that the complete closure of the Arthur Kill 
for two-week periods during the course of the deepening project would 
negatively impact navigational safety on the waterway and that an 
alternative proposal that would keep the channel open to vessel traffic 
was necessary.
    We participated in nine initial planning meetings with the USACE, 
harbor and docking pilots, tugboat operators, facility operators, and 
the contractors between January and April 2011. In early April 2011 the 
USACE, with the assistance of harbor and docking pilots, conducted 
simulator assessments of the drilling and blasting areas. These 
simulations studied the possibility of reducing the size of the 
drilling and blasting areas in order to maintain one-half of the 
channel open at all times for vessel transits. The results of the 
simulation allowed the USACE to determine that, although it was 
possible to conduct the channel deepening without completely closing 
the Arthur Kill, additional coordination meetings were necessary.
    Five additional meetings were held between April and June 2011 to 
discuss the results of the navigation simulations. In June the USACE 
and the contractor presented a revised drilling, blasting and dredging 
plan, which called for reduction in the channel width during the 
deepening project. The drilling, blasting and dredging operations will 
render a portion of the Arthur Kill unavailable to vessel navigation 
and decrease the overall width of the navigable channel that is 
available to deep draft commercial vessels. The Coast Guard initially 
planned to control traffic under the auspices of the Vessel Traffic 
Service (VTS) New York, but as a result of the June 2011 meeting with 
the USACE, it was determined that a Regulated Navigation Area (RNA) 
would be necessary. The dynamic nature of the dredging process and 
multitude of drilling and blasting equipment associated with the 
project necessitates that all mariners comply with this RNA, as the 
drilling and blasting equipment configuration may change on a daily 
basis. Immediate action is needed to control vessels operating in the 
reduced waterway and protect the maritime public from the hazards 
associated with drilling, blasting and dredging operations on a 
constricted waterway. Publishing a NPRM and waiting 30 days for comment 
would be contrary to the public interest since immediate action is 
needed to restrict vessel traffic and protect the maritime public from 
the hazards associated with drilling, blasting and dredging operations.
    For the same reasons, under 5 U.S.C. 553(d)(3) the Coast Guard 
finds that good cause exists for making this rule effective less than 
30 days after publication in the Federal Register.

Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the 
authority to establish RNAs in defined water areas that are determined 
to have hazardous conditions and in which vessel traffic can be 
regulated in the interest of safety. See 33 U.S.C. 1231 and Department 
of Homeland Security Delegation No. 0170.1.

[[Page 52571]]

    The purpose of this interim rule is to ensure the safe transit of 
vessels in the area and to protect all persons, vessels, and the marine 
environment during the ongoing channel deepening project.

Discussion of Rule

    The RNA encompasses all waters of the North of Shooters Island 
Reach, Elizabethport Reach, and Gulfport Reach in the Arthur Kill.
    Drilling and blasting operations began in the Arthur Kill on 
Tuesday, August 2, 2011. The project consists of dredging, drilling and 
underwater blasting of bedrock in the Arthur Kill navigable channel. 
Dredging operations will encroach on portions of the navigable channel, 
require the relocation of lateral aids to navigation, and create a 
reduction in the width of the navigable channel.
    This interim rule seeks to enhance navigational safety and marine 
environmental protection, and promote vessel movement by reducing the 
potential for collisions, groundings, and the loss of lives and 
property. This interim rule became effective with actual notice upon 
being signed by the District Commander; however the Coast Guard would 
like to receive comments before issuing a final rule.
    Any violation of the RNA described herein is punishable by, among 
others, civil and criminal penalties, in rem liability against the 
offending vessel, and the initiation of suspension or revocation 
proceedings against Coast Guard-issued merchant-mariner credentials.
    The Captain of the Port (COTP) New York will cause notice of 
enforcement, suspension of enforcement, or closure of the waterway to 
be made by all appropriate means to effect the widest distribution 
among the affected segments of the public. Such means of notification 
may include, but are not limited to, Broadcast Notice to Mariners and 
Local Notice to Mariners.

Regulatory Analyses

    We developed this interim 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 will be severely limited for the 
following reasons: (1) The RNA does not prohibit vessels from 
transiting the area; (2) vessels will be allowed to safely transit 
without restrictions in areas where there are no dredges or drill 
barges operating; (3) vessels may be allowed to transit work areas 
where dredges and/or drill barges are operating unless blasting 
operations are underway; (4) delays resulting from blast operations are 
expected to last no longer than 15 minutes and occur twice daily; and 
(5) advance notification will be made to the maritime community via 
Local Notice to Mariners, Broadcast Notice to Mariners, and on the 
Internet at http://homeport.uscg.mil/newyork.

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 
may be small entities: the owners or operators of vessels intending to 
transit in a portion of the Arthur Kill from August 12, 2011 until the 
Arthur Kill Channel Deepening Project is completed.
    This rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons: 
although the regulated navigation area will apply to the entire width 
of the Arthur Kill, vessel traffic will be allowed to pass through the 
regulated area by coordinating with Vessel Traffic Service New York 
(VTSNY). Before the effective period, we will issue maritime advisories 
widely available to users of the waterway.
    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 offer to assist small 
entities in understanding the rule so that they can 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 (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.

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.

[[Page 52572]]

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)(g), of 
the Instruction. This rule involves the establishment of a RNA. 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 165

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

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
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.


0
2. Add Sec.  165.T01-0727 to read as follows:


Sec.  165.T01-0727  Regulated Navigation Area; Arthur Kill, NY and NJ.

    (a) Regulated Area. The following area is a regulated navigation 
area: all waters of the North of Shooters Island Reach, Elizabethport 
Reach, and Gulfport Reach in the Arthur Kill; bounded in the northeast 
by a line drawn from position 40[deg] 38'48.637'' N, 074[deg] 
09'18.204'' W; to a point in position 40[deg]38'37.815'' N, 074[deg] 
09'20.245'' W; and bounded in the southwest by a line drawn from 
position 40[deg] 37'15.643'' N, 074[deg] 12'15.927'' W; to a point in 
position 40[deg] 37'15.779'' N, 074[deg] 12'08.0622'' W. All geographic 
coordinates are North American Datum of 1983 (NAD 83).
    (b) Regulations.
    (1) The general regulations contained in 33 CFR 165.13 apply.
    (2) All vessels must remain at least 150 feet from all drilling and 
blasting equipment; if a vessel must pass within 150 feet of drilling 
and blasting equipment for reasons of safety, they shall contact the 
dredge and/or blasting barge on Channel 13.
    (3) No vessel shall enter or transit any work area where drill 
barges and/or dredges are located without the permission of Vessel 
Traffic Service New York (VTSNY) Director.
    (4) No vessel may be underway within 1,500 feet of the blasting 
area during blasting operations.
    (5) No vessel shall enter an area of drilling or blasting when they 
are advised by the drilling barge or VTSNY that a misfire or hang fire 
has occurred.
    (6) Vessel Movement Reporting System (VMRS) users are prohibited 
from meeting or overtaking other vessels when transiting alongside an 
active work area where dredging and drilling equipment are being 
operated.
    (7) Each vessel transiting in the vicinity of a work area where 
dredges are located is required to do so at reduced speed to maintain 
maneuverability while minimizing the effects of wake and surge.
    (8) The VTSNY Director may impose additional requirements through 
VTS measures, as per 33 CFR 161.11.
    (c) Effective Period. This rule is effective from 8 a.m. on August 
12, 2011 until 5 p.m. on April 1, 2014.

    Dated: 12 Aug 2011.
J.B. McPherson,
Captain, U.S. Coast Guard, Commander, First Coast Guard District, 
Acting.
[FR Doc. 2011-21460 Filed 8-22-11; 8:45 am]
BILLING CODE 9110-04-P


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