[Federal Register Volume 64, Number 72 (Thursday, April 15, 1999)]
[Rules and Regulations]
[Pages 18577-18580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9431]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-98-165]
RIN 2121-AA97


Regulated Navigation Area: Kill Van Kull Channel, Newark Bay 
Channel, South Elizabeth Channel, Elizabeth Channel, Port Newark 
Channel, and New Jersey Pierhead Channel, New York and New Jersey

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is revising the Regulated Navigation Area 
(RNA) in the New York Harbor to include the Kill Van Kull Channel, 
Newark Bay Channel, South Elizabeth Channel, Elizabeth Channel, Port 
Newark Channel, and New Jersey Pierhead Channel, New York and New 
Jersey. This action is necessary because of the extensive channel 
deepening project being undertaken jointly by the Army Corps of 
Engineers and the Port Authority of New York and New Jersey. The RNA is 
needed to ensure the safety of vessels transiting the restricted 
channel during blasting and dredging operations.

DATES: This final rule is effective April 19, 1999.

ADDRESSES: Documents as indicated in this preamble are available for 
inspection or copying at Coast Guard Activities New York, 212 Coast 
Guard Drive, Staten Island, New York 10305, between 8 a.m., and 3 p.m., 
Monday through Friday, except Federal holidays. The telephone number is 
(718) 354-4191.

FOR FURTHER INFORMATION CONTACT:
Lieutenant Commander B, Krenzien, Waterways Management Division, Coast 
Guard Activities New York (718) 354-4191.

SUPPLEMENTARY INFORMATION: 

Regulatory History

    On December 31, 1998, the Coast Guard published a notice of 
proposed rulemaking entitled Regulated Navigation Area: Kill Van Kull 
Channel, Newark Bay Channel, South Elizabeth Channel, Elizabeth 
Channel, Port Newark Channel, and New Jersey Pierhead Channel, New York 
and New Jersey in the Federal Register (63 FR 72219). The Coast Guard 
did not receive any letters commenting on the proposed rulemaking. No 
public hearing was requested, and none was held. Good cause exists for 
making this regulation

[[Page 18578]]

effective less than 30 days after Federal Register publication. Any 
delay encountered in this regulation's effective date would be contrary 
to public interest since immediate action is needed to reduce the risks 
of collisions, groundings, and other navigational mishaps associated 
with this channel deepening project. Additionally, vessels will be 
allowed to transit work areas where dredges and/or drill barges are 
located unless blasting is to be conducted. Delays resulting from 
blasting are expected to last no longer than 15 minutes and occur less 
than 4 times daily in any one area.

Background and Purpose

    The Kill Van Kull Channel, Newark Bay Channel, South Elizabeth 
Channel, Elizabeth Channel, Port Newark Channel, and New Jersey 
Pierhead Channel are the areas designated as a RNA. These channels are 
located in the waters between Bayonne, New Jersey, Staten Island, New 
York, and Elizabeth/Newark, New Jersey. The RNA enhances vessel safety 
during the extensive channel deepening project that involves dredging 
and blasting in these areas. These channels connect the deepwater ports 
of New York Harbor. Current channel depths restrict the full economy of 
existing and future generations of deep draft vessels. Tankships 
arriving in the port with drafts approaching the forty five (45) foot 
controlling depths of Ambrose and Anchorage Channels must lighter some 
of their cargo to barges in the deep New York Harbor anchorages in 
order to safely transit the forty (40) foot channel depths. This 
results in substantial lightering and delay costs. Container vessels 
cannot lighter in the anchorages and therefore must load to less than 
full drafts. This project, which is expected to last approximately six 
(6) years, will deepen the existing forty (40) foot channel to forty 
five (45) feet to accommodate the deeper draft vessels. The dredging 
areas will continue to be available for use by the general public. 
Restrictions on vessels transits during this project are unchanged from 
the current regulations in Sec. 165.165(d) except for (d)(1, 5, 7, and 
9). Paragraph (d)(1) allows vessels to enter or transit a work area 
where drill barges and/or dredges are located once granted permission 
from Vessel Traffic Service New York (VTSNY). Blasting operations being 
conducted in the work area will normally preclude vessels from 
receiving permission. One-way traffic will be maintained during this 
project in work areas where drill barges and/or dredges are located. 
Paragraph (d)(5) specifies that the prevailing current will be measured 
from the Battery tide station. This is expected to reduce confusion 
among mariners because use of the Battery tide station is the port 
norm. Paragraph (d)(7) refers to the hawser and wire throughout the 
paragraph. Paragraph (d)(9) defines the phrase ``tugs with tows'' to 
include tugs with vessels or barges alongside or being pushed. This 
rulemaking is needed to reduce the risks of collisions, groundings, and 
other navigational mishaps associated with this project. These are the 
same restrictions taken during 1991-92 when dredging was last conducted 
in this vicinity. They were instituted then due to three groundings 
that resulted in one oil spill and one channel blockage. Public 
notifications for specific dredging dates will be made prior to the 
commencement of dredging via the Local Notice to Mariners, marine 
information broadcasts, facsimile, and at New York Harbor Operations 
Committee meetings. The expected starting date is April 19, 1999, in 
Work Area 2.

Regulatory Evaluation

    This final rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866 and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. It has not been reviewed by the Office of Management and 
Budget under that Order. It is not significant under the regulatory 
policies and procedures of the Department of Transportation (DOT) (44 
FR 11040, February 26, 1979).
    The Coast Guard expects the economic impact of this final rule to 
be so minimal that a full Regulatory Evaluation under paragraph 10e of 
the regulatory policies and procedures of DOT is unnecessary. The 
effect of this regulation will not be significant for several reasons: 
vessels will be allowed to transit work areas where dredges and/or 
drill barges are located unless blasting is to be conducted, delays 
resulting from blasting are expected to last no longer than 15 minutes 
and occur less than 4 times daily in any one area, there are no 
restrictions on vessel traffic in the RNA in areas where there are no 
dredges or drill barges, the Port Authorities of New York and New 
Jersey are working with the U.S. Army Corps of Engineers on this 
project to ensure future generations of deep draft vessels are able to 
use the Port of New York/New Jersey, it will reduce substantial costs 
associated with lightering operations currently required by vessels 
unable to transit the harbor fully loaded, and advance notifications 
will be made to the local maritime community by the Local Notice to 
Mariners, facsimile, marine information broadcasts, and New York Harbor 
Operations Committee meetings. Additionally, these are the same 
restrictions taken during 1991-92 when dredging was last conducted in 
this vicinity and other than minor delays in vessel transit time, no 
impact was noted.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the 
Coast Guard considered whether this final rule will have a significant 
economic impact on a substantial number of small entities. ``Small 
entities'' include 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.

    For the reasons stated in the Regulatory Evaluation section above, 
the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule 
will not have a significant economic impact on a substantial number of 
small entities.

Collection of Information

    This final rule does not provide for a collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Federalism

    The Coast Guard has analyzed this final rule under the principles 
and criteria contained in Executive Order 12612 and has determined that 
this final rule does not have sufficient implications for federalism to 
warrant the preparation of a Federalism Assessment.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) [Pub. 
L. 104-4, 109 Stat. 48] requires Federal agencies to assess the effects 
of certain regulatory actions on State, local, and tribal governments, 
and the private sector. UMRA requires a written statement of economic 
and regulatory alternatives for rules that contain Federal mandates. A 
Federal mandate is a new or additional enforceable duty imposed on any 
State, local, or tribal government, or the private sector. If any 
Federal mandate causes those entities to spend, in the aggregate, $100 
million or more in any one year, the UMRA analysis is required. This 
Final Rule does not impose Federal mandates on any State, local, or 
tribal governments, or the private sector.

Environment

    The Coast Guard considered the environmental impact of this final 
rule and concluded that under figure 2-1, paragraph 34(g), of 
Commandant

[[Page 18579]]

Instruction M16475.1C, this final rule is categorically excluded from 
further environmental documentation. A ``Categorical Exclusion 
Determination'' is available in the docket for inspection or copying 
where indicated under ADDRESSES.

Other Executive Orders on the Regulatory Process

    In addition to the statutes and Executive Orders already addressed 
in this preamble, the Coast Guard considered the following executive 
orders in developing this final rule and reached the following 
conclusions:
    E.O. 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights. This rule will not effect a 
taking of private property or otherwise have taking implications under 
this Order.
    E.O. 12875, Enhancing the Intergovernmental Partnership. This rule 
will not impose, on any State, local, or tribal government, a mandate 
that is not required by statute and that is not funded by the Federal 
government.
    E.O. 12988, Civil Justice Reform. This rule meets applicable 
standards in sections 3(a) and 3(b)(2) of this Order to minimize 
litigation, eliminate ambiguity, and reduce burden.
    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks. This rule is not an economically significant rule and 
does not concern an environmental risk to safety disproportionately 
affecting children.

List of Subjects in 33 CFR Part 165

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

Regulation

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

PART 165--[AMENDED]

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

    Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 
6.04-6, 160.5; 49 CFR 1.46. Section 165.100 is also issued under 
authority of Sec. 311, Pub. L. 105-383.

    2. Revise Sec. 165.165 to read as follows:


Sec. 165.165  Regulated Navigation Area; Kill Van Kull Channel, Newark 
Bay Channel, South Elizabeth Channel, Elizabeth Channel, Port Newark 
Channel and New Jersey Pierhead Channel, New York and New Jersey.

    (a) Regulated Navigation Area (RNA). All waters of the Kill Van 
Kull (KVK) Channel east of KVK Light 16A (LLNR 37340) in North of 
Shooters Island Reach, east of Shooters Island Light 2 (LLNR 37375) in 
South of Shooters Island Reach, and west of KVK Channel Junction 
Lighted Bell Buoy `KV' (LLNR 37265) in Constable Hook Reach; all waters 
of Newark Bay Channel south of Newark Bay Light 19 (LLNR 37505); all 
waters of South Elizabeth Channel, Elizabeth Channel, Port Newark 
Channel, and New Jersey Pierhead Channel south of New Jersey Pierhead 
South Channel Lighted Buoy 5 (LLNR 37020).
    (b) Description of Work Areas in the RNA.
    (1) Work Area (1): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
40 deg.38'40.0''N                    074 deg.03'45.0''W
40 deg.38'50.4''N                    074 deg.04'16.0''W
40 deg.38'57.9''N                    074 deg.04'11.8''W
40 deg.39'03.8''N                    074 deg.04'43.8''W
40 deg.39'04.5''N                    074 deg.05'07.6''W
40 deg.39'01.8''N                    074 deg.05'14.8''W
40 deg.39'05.0''N                    074 deg.05'17.1''W
40 deg.39'10.3''N                    074 deg.05'05.0''W
40 deg.39'09.3''N                    074 deg.04'27.8''W
40 deg.39'00.2''N                    074 deg.03'45.1''W
40 deg.38'58.0''N                    074 deg.03'34.9''W
40 deg.38'40.0''N                    074 deg.03'45.0''W
------------------------------------------------------------------------

    (2) Work Area (2): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
40 deg.38'50.4'' N                   074 deg.04'16.0'' W
40 deg.38'57.5'' N                   074 deg.04'37.8'' W
40 deg.38'59.2'' N                   074 deg.04'55.4'' W
40 deg.38'57.4'' N                   074 deg.05'12.9'' W
40 deg.38'47.5'' N                   074 deg.05'33.8'' W
40 deg.38'45.8'' N                   074 deg.05'43.6'' W
40 deg.38'49.4'' N                   074 deg.05'44.7'' W
40 deg.38'51.0'' N                   074 deg.05'35.7'' W
40 deg.39'04.7'' N                   074 deg.05'06.6'' W
40 deg.39'03.7'' N                   074 deg.04'29.5'' W
40 deg.38'57.9'' N                   074 deg.04'11.8'' W
40 deg.38'50.4'' N                   074 deg.04'16.0'' W
------------------------------------------------------------------------

    (3) Work Area (3): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
40 deg.38'45.8'' N                   074 deg.05'43.6'' W
40 deg.38'49.4'' N                   074 deg.05'44.7'' W
40 deg.38'51.2'' N                   074 deg.05'35.8'' W
40 deg.39'01.8'' N                   074 deg.05'14.8'' W
40 deg.39'05.0'' N                   074 deg.05'17.1'' W
40 deg.38'57.5'' N                   074 deg.05'32.3'' W
40 deg.38'53.8'' N                   074 deg.05'44.1'' W
40 deg.38'53.1'' N                   074 deg.05'56.8'' W
40 deg.38'55.3'' N                   074 deg.06'38.1'' W
40 deg.38'41.5'' N                   074 deg.07'18.3'' W
40 deg.38'38.2'' N                   074 deg.07'41.4'' W
40 deg.38'38.5'' N                   074 deg.07'46.0'' W
40 deg.38'35.2'' N                   074 deg.07'49.0'' W
40 deg.38'31.2'' N                   074 deg.07'50.0'' W
40 deg.38'30.1'' N                   074 deg.07'41.3'' W
40 deg.38'33.9'' N                   074 deg.07'15.1'' W
40 deg.38'44.0'' N                   074 deg.06'45.7'' W
40 deg.38'46.7'' N                   074 deg.06'25.9'' W
40 deg.38'44.8'' N                   074 deg.05'49.6'' W
40 deg.38'45.8'' N                   074 deg.05'43.6'' W
------------------------------------------------------------------------

    (4) Work Area (4): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
40 deg.38'31.2'' N                   074 deg.07'50.0'' W
40 deg.38'35.2'' N                   074 deg.07'49.0'' W
40 deg.38'36.6'' N                   074 deg.08'01.2'' W
40 deg.38'28.2'' N                   074 deg.08'51.0'' W
40 deg.38'35.2'' N                   074 deg.09'06.2'' W
40 deg.38'30.0'' N                   074 deg.09'12.0'' W
40 deg.38'24.8'' N                   074 deg.09'02.6'' W
40 deg.38'24.0'' N                   074 deg.08'52.0'' W
40 deg.38'31.5'' N                   074 deg.08'07.4'' W
40 deg.38'31.8'' N                   074 deg.07'54.6'' W
40 deg.38'31.2'' N                   074 deg.07'50.0'' W
------------------------------------------------------------------------

    (5) Work Area (5): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
              Latitude                            Longitude
------------------------------------------------------------------------
40 deg.38'35.2'' N                   074 deg.07'49.0'' W
40 deg.38'38.5'' N                   074 deg.07'46.0'' W
40 deg.38'40.7'' N                   074 deg.08'01.3'' W
40 deg.38'34.0'' N                   074 deg.08'41.0'' W
40 deg.38'40.0'' N                   074 deg.08'52.0'' W
40 deg.38'50.0'' N                   074 deg.08'55.0'' W
40 deg.38'35.2'' N                   074 deg.09'06.2'' W
40 deg.38'28.2'' N                   074 deg.08'51.0'' W
40 deg.38'36.6'' N                   074 deg.08'01.2'' W
40 deg.38'35.2'' N                   074 deg.07'49.0'' W
------------------------------------------------------------------------

    (6) Work Area (6): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
             Latitude                             Longitude
------------------------------------------------------------------------
40 deg.39'17.0''N                   074 deg.08'38.0''W
40 deg.40'21.0''N                   074 deg.08'00.0''W
40 deg.40'34.3''N                   074 deg.07'54.0''W
40 deg.40'35.9''N                   074 deg.08'03.9''W
40 deg.40'33.2''N                   074 deg.08'12.0''W
40 deg.40'26.6''N                   074 deg.08'17.9''W
40 deg.39'34.3''N                   074 deg.08'55.8''W
40 deg.39'30.8''N                   074 deg.08'58.2''W
40 deg.39'21.6''N                   074 deg.08'50.2''W
40 deg.39'17.0''N                   074 deg.08'38.0''W
------------------------------------------------------------------------

    (7) Work Area (7): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
             Latitude                             Longitude
------------------------------------------------------------------------
40 deg.40'26.7''N                   074 deg.08'17.9''W
40 deg.41'14.4''N                   074 deg.09'35.0''W
40 deg.41'18.9''N                   074 deg.09'31.9''W
40 deg.40'46.1''N                   074 deg.08'38.9''W
40 deg.40'44.5''N                   074 deg.08'30.2''W

[[Page 18580]]

 
40 deg.40'33.2''N                   074 deg.08'12.0''W
40 deg.40'26.7''N                   074 deg.08'17.9''W
------------------------------------------------------------------------

    (8) Work Area (8): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
             Latitude                             Longitude
------------------------------------------------------------------------
40 deg.39'30.8''N                   074 deg.08'58.2''W
40 deg.39'40.6''N                   074 deg.09'22.5''W
40 deg.39'43.5''N                   074 deg.09'25.8''W
40 deg.39'44.8''N                   074 deg.09'24.9''W
40 deg.39'32.8''N                   074 deg.08'55.2''W
40 deg.39'30.8''N                   074 deg.08'58.2''W
                                   AND
40 deg.39'21.6''N                   074 deg.08'50.2''W
40 deg.39'17.0''N                   074 deg.03'38.0''W
40 deg.38'50.0''N                   074 deg.08'55.0''W
40 deg.38'30.0''N                   074 deg.09'12.0''W
40 deg.38'33.3''N                   074 deg.09'19.5''W
40 deg.38'46.8''N                   074 deg.09'22.8''W
40 deg.39'07.7''N                   074 deg.08'58.8''W
40 deg.39'21.6''N                   074 deg.08'50.2''W
------------------------------------------------------------------------

    (9) Work Area (9): The waters bounded by a line connecting the 
following points:

------------------------------------------------------------------------
             Latitude                             Longitude
------------------------------------------------------------------------
40 deg.40'34.3''N                   074 deg.07'54.0''W
40 deg.41'08.5''N                   074 deg.07'38.5''W
40 deg.41'11.6''N                   074 deg.07'50.8''W
40 deg.41'17.6''N                   074 deg.07'56.4''W
40 deg.41'20.0''N                   074 deg.08'00.3''W
40 deg.41'42.3''N                   074 deg.08'21.2''W
40 deg.41'59.4''N                   074 deg.09'11.0''W
40 deg.41'55.8''N                   074 deg.09'13.1''W
40 deg.41'39.1''N                   074 deg.08'24.6''W
40 deg.41'21.0''N                   074 deg.08'07.6''W
40 deg.40'46.1''N                   074 deg.08'38.9''W
40 deg.40'44.5''N                   074 deg.08'30.2''W
40 deg.40'50.4''N                   074 deg.08'30.3''W
40 deg.41'13.4''N                   074 deg.08'09.7''W
40 deg.41'13.7''N                   074 deg.08'05.6''W
40 deg.41'03.2''N                   074 deg.07'55.7''W
40 deg.40'54.4''N                   074 deg.07'55.7''W
40 deg.40'35.9''N                   074 deg.08'03.9''W
40 deg.40'34.3''N                   074 deg.07'54.0''W
------------------------------------------------------------------------

    (e) Projected dates for each work area. Dredging is scheduled to 
commence in Work Area (2) on April 19, 1999. As contracts are let for 
dredging of each of the remaining work areas, commencement dates will 
be made available via the Local Notice to Mariners, marine information 
broadcasts, facsimile, and at New York Harbor Operations Committee 
meetings.
    (d) Regulations. (1) No vessel shall enter or transit any work area 
where drill barges and/or dredges are located without permission of 
Vessel Traffic Service New York (VTSNY).
    (2) Each vessel transiting in the vicinity of the work areas, where 
drill barges and/or dredges are located, is required to do so at no 
wake speed.
    (3) No vessel shall enter the RNA when they are advised by the 
drilling barge or VTSNY that a misfire or hangfire has occurred. 
Vessels already underway in the RNA shall proceed to clear the impacted 
area immediately.
    (4) Vessels, 300 gross tons or greater, and tugs with tows are 
prohibited from meeting or overtaking other vessels when transiting 
alongside an active work area.
    (5) Vessels, 300 gross tons or greater, and tugs with tows 
transiting with the prevailing current (as measured from the Battery 
tide station) are regarded as the stand-on vessel.
    (6) Prior to entering the RNA, the master, pilot or operator of 
each vessel, 300 gross tons or greater and tugs with tows, shall ensure 
that they have sufficient propulsion and directional control to safely 
navigate the area under the prevailing conditions, and shall notify 
VTSNY as to their decision regarding the employment of assist tugs 
while transiting the RNA.
    (7) Hawser or wire length must not exceed 100 feet, measured from 
the towing bit on the tug to the point where the hawser or wire 
connects with the towed vessel or barge, for any vessel with another 
vessel/barge in tow.
    (8) Waiver. The Captain of the Port, New York may, upon request, 
authorize a deviation from any regulation in this section if it is 
found that the proposed operations can be done safely. An application 
for deviation must be received not less than 24 hours before the 
intended operation and must state the need and describe the proposal.
    (9) Tugs with tows includes a tug with a vessel or barge in tow, 
alongside, or being pushed.

    Dated: April 8, 1999.
R.M. Larrabee,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 99-9431 Filed 4-14-99; 8:45 am]
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