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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 165
          - [Docket No. USCG-2008-0085]
          - RIN 1625-AA11

# AGENCY:

Coast Guard, DHS.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Coast Guard proposes to establish a regulated navigation area extending from the entrance of East Rockaway Inlet to the Atlantic Beach Bridge, Nassau County, New York. This regulated navigation area will affect commercial vessels carrying petroleum products in excess of 250 barrels by requiring them to plan all transits of the regulated navigation area so that they maintain a minimum of two feet under keel clearance at all times. Additionally, they may not transit the regulated navigation area if a small craft advisory, or more severe weather warning, has been issued, unless authorized by the Captain of the Port Long Island Sound. This action is necessary because significant shoaling in this area has reduced the depths of the navigable channel and has increased the risk of vessels grounding in the channel and the potential for a significant oil spill.

# DATES:

Comments and related material must be received by the Coast Guard on or before August 14, 2009.

# ADDRESSES:

You may submit comments identified by docket number USCG-2008-0085 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 proposed rule, call or e-mail Lieutenant Commander Kristen Schroeder, Prevention Department, CG Sector Long Island Sound at 203-468-4459 or                         *kristen.m.schroder@uscg.mil.*                         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-2008-0085), 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*, select the Advanced Docket Search option on the right side of the screen, insert “USCG-2008-0085” in the Docket ID box, press Enter, and 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                    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 may change the proposed 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*, select the Advanced Docket Search option on the right side of the screen, insert USCG-2008-0085 in the Docket ID box, press Enter, and then click on the item in the Docket ID 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 using one of the four methods specified under                     **ADDRESSES**                    . Please                           ( print page 28200)                        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**                    .                

## Background and Purpose

East Rockaway Inlet is on the South Shore of Long Island, in Nassau County. Water depths in the federal navigation channel change constantly and have been reduced in some areas to as low as five feet at times. This channel was last dredged by the Army Corps of Engineers during the winter of 2008-2009 and is on a 2 year cycle for dredge work. The channel buoys require regular relocation to mark best water as the channel shoals in between dredge cycles. East Rockaway Inlet is frequented by small coastal tankers and tugs towing oil barges supplying two facilities: Sprague Energy Oceanside, located in Oceanside, Long Island, New York, a supplier of home heating oil for Long Island, and Keyspan E.F. Barrett, an electrical power generation facility, located in Island Park, Long Island, New York. For vessels carrying 250 or more barrels of petroleum, approximately 60 transits of the area occur each year. The shoaling in this area has reduced depths to a point where there is an increased risk of vessels grounding and the potential for a significant oil spill. Similar shoaling led to the grounding in late 2003 of a small coastal tanker carrying home heating oil.

This proposed rule will provide for the safety of vessel traffic and protection of the maritime environment in and around East Rockaway Inlet, Long Island, New York.

## Discussion of Proposed Rule

This proposed rule establishes a regulated navigation area (RNA) on the navigable waters of the East Rockaway Inlet in an area bounded by lines drawn from position 40°34′56″ N, 073°45′19″ W, [approximate position of Silver Point breakwater buoy (LLNR 31500)] running north to a point of land on the northwest side of the inlet at position 40°35′28″ N, 073°46′12″ W, thence easterly along the shore to the east side of the Atlantic Beach Bridge, State Route 878, over East Rockaway Inlet, thence across said bridge to the south side of East Rockaway Inlet, thence westerly along the shore and across the water to the point of origin. The rule described herein restricts the transit of vessels carrying petroleum products in excess of 250 barrels such that they must plan all transits of the RNA to maintain at least two feet under keel clearance at all times. Additionally, such vessels are prohibited from transiting the RNA during periods when a small craft advisory, or more severe weather warning, has been issued, unless authorized by the Captain of the Port Long Island Sound. In addition, operators of vessels carrying petroleum products in excess of 250 barrels as cargo that require a nighttime transit through East Rockaway Inlet may do so only after receiving approval from the Captain of the Port Long Island Sound. The operator's voyage plan must contain parameters for transit of the RNA that are acceptable to the Captain of the Port Long Island Sound. Parameters addressed shall include: Forecasted weather conditions for the duration of the transit, restrictions due to state of tide, the loaded draft of the vessel, and minimum under keel clearance.

Any violation of the RNA described herein, is punishable by, among others, civil and criminal penalties, in rem liability against the offending vessel, and license sanctions.

                    The Captain of the Port Long Island Sound will notify the maritime community of the requirements of this RNA publication in the                     **Federal Register**                    , broadcast notifications and notifications in the local notice to mariners.                

## 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. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.

The regulated navigation area limits only vessels carrying petroleum products as cargo and allows vessels with sufficient under keel clearance to transit during good weather and daylight hours without having to gain prior approval from the Captain of the Port Long Island Sound. Otherwise, a vessel may request and receive approval from the Captain of the Port Long Island Sound, to transit at other times. Recreational and other maritime traffic is not otherwise restricted or prohibited from transiting this area.

## 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.

This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels carrying petroleum products intending to transit or anchor in those portions of the East Rockaway Inlet covered by the regulated navigation area; and Sprague Energy Oceanside, located in Oceanside, Long Island, New York, a supplier of home heating oil, and Keyspan E.S. Barrett, an electrical power generation facility, located in Island Park, Long Island, New York, which receive the vessels affected by this regulated navigation area. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities.

Therefore, 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.

                    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, please contact Lieutenant Commander Kristen Schroeder, Prevention Department, CG Sector Long Island Sound at (203) 468-4459. 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.                          ( print page 28201)    

## 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 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 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 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 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 which do not individually or cumulatively have a significant effect on the human environment. Therefore, this rule is categorically excluded, under section 2.B.2. Figure 2-1, paragraph 34(g), of the instruction and neither an environmental assessment nor an environmental impact statement is required. This rule involves the establishing, disestablishing, or changing regulated navigation areas and security or safety zones. A preliminary “Environmental Analysis Checklist” supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. 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, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.156 to read as follows:

§ 165.156 

                            (a)                             *Location.*                             The following area is a Regulated Navigation Area: All waters of East Rockaway Inlet in an area bounded by lines drawn from position 40°34′56″ N, 073°45′19″ W, [approximate position of Silver Point breakwater buoy (LLNR 31500)] running north to a point of land on the northwest side of the inlet at position 40°35′28″ N, 073°46′12″ W, thence easterly along the shore to the east side of the Atlantic Beach Bridge, State Route 878, over East Rockaway Inlet, thence across the bridge to the south side of East Rockaway Inlet, thence westerly along the shore and across the water to the beginning.                        

                            (b)                             *Regulations.*                             (1) The general regulations contained in 33 CFR § 165.10, § 165.11, and § 165.13 apply.                        

(2) In accordance with the general regulations, the following regulations apply to vessels carrying petroleum products in excess of 250 barrels:

(i) The vessel must have plans in place to maintain a minimum of two feet under keel clearance at all times.

(ii) A vessel requiring a nighttime transit through East Rockaway Inlet may only do so only after receiving approval from the Captain of the Port Long Island Sound.

                            (iii) Vessels are prohibited from transiting East Rockaway Inlet if a small                                   ( print page 28202)                                craft advisory or greater has been issued for the area unless specific approval is received from the Captain of the Port Long Island Sound.                        

(iv) In an emergency, any vessel may deviate from the regulations in this section to the extent necessary to avoid endangering the safety of persons, property, or the environment. If deviation from the regulations is necessary, the master or their designee shall inform the Coast Guard as soon as it is practicable to do so.

                            (c)                             *Waivers.*                             (1) The Captain of the Port Long Island Sound may, upon request, waive any regulation in this section. (2) A request for a waiver must include the need for the waiver and describe the proposed vessel operations through the Regulated Navigation Area.                        

Dated: May 27, 2009.

Dale G. Gabel,

Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.

[FR Doc. E9-13889 Filed 6-12-09; 8:45 am]

BILLING CODE 4910-15-P