[Federal Register Volume 67, Number 122 (Tuesday, June 25, 2002)]
[Rules and Regulations]
[Pages 42723-42726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15967]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-069]
RIN 2115-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: Temporary final rule; request for comments.

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SUMMARY: The Coast Guard is amending a Regulated Navigation Area (RNA) 
to add restrictions on vessels transiting the Bergen Point West Reach 
of the Kill Van Kull during U.S. Army Corps of Engineers dredging 
operations in that area. This action is necessary to provide for the 
safety of life and property on navigable waters during dredging 
operations that impinge upon the navigable portion of the channel and 
require the temporary relocation of navigational aids. This action is 
intended to reduce the risks of collisions, groundings and other 
navigational mishaps.

DATES: This rule is effective from June 17, 2002 to March 30, 2003. 
Comments and related material must reach the Coast Guard on or before 
August 26, 2002.

ADDRESSES: The Waterways Oversight Branch of Coast Guard Activities New 
York maintains the public docket for this rulemaking. Comments and 
material received from the public, as well as documents indicated in 
this preamble as being available in the docket, are part of docket 
CGD01-02-069 and are available for inspection or copying at Waterways 
Oversight Branch, Coast Guard Activities New York, 212 Coast Guard 
Drive, room 203, Staten Island, New York 10305, between 8 a.m. and 3 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander C. Nichols, 
Vessel Traffic Service, Coast Guard Activities New York at (718) 354-
4191.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for

[[Page 42724]]

this rulemaking (CGD01-02-069), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. You may submit your comments and material to the Coast Guard 
at the address under ADDRESSES. If you submit them 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 them 
by mail and would like to know they reached the Coast Guard, please 
enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period. 
We may change this rule in view of them.

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553 (b)(3), the Coast Guard finds that good 
cause exists for not publishing an NPRM. The U.S. Army Corps of 
Engineers is conducting an extensive navigation improvement project in 
Kill Van Kull and Newark Bay, New York and New Jersey. The project, 
which is being conducted in nine distinct phases, began in April 1999 
and will continue through approximately April 2005. In anticipation of 
the project and its probable impact on navigation, the Coast Guard 
worked with local pilots and maritime users to develop restrictions on 
vessels transiting the area during dredging operations. As a result of 
that cooperative process, we published a notice of proposed rulemaking 
(NPRM) in the Federal Register (63 FR 72219) on December 31, 1998, 
discussing our intention to establish a Regulated Navigation Area (RNA) 
for 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. We received no letters commenting on the 
proposed rule. No public hearing was requested and none was held. On 
April 15, 1999, we published a Final Rule in the Federal Register (64 
FR 18577) codifying the RNA at 33 CFR 165.165.
    Now that dredging operations have begun in the Bergen Point portion 
of the navigation improvement project, it has become evident that the 
existing RNA is insufficient to ensure the interests of safe navigation 
on that portion of the waterway. On May 16, 2002, Kill Van Kull Channel 
Lighted Buoys 10 and 12 (LLNR 37300 and 37310) and Bergen Point Lighted 
Buoy 14 (LLNR 37325) had to be relocated to facilitate dredging of the 
Kill Van Kull. Since these buoys were relocated, the Bergen Point Buoy 
has been hit and moved off-station requiring Coast Guard assets to be 
diverted from other safety and security missions in the Port of New 
York and New Jersey while re-establishing the buoy on-station. More 
importantly, other vessels have been unable to navigate within the 
temporary channel boundaries. More than half of the vessels over 700 
feet long transiting this area were unable to safely navigate the 
narrow southern channel during periods of high current and moderate 
winds. And there have been several near collisions between tugs and 
barges operating in the area. Unless additional regulations are 
established for vessels operating in the vicinity of Bergen Point, the 
likelihood of similar future mishaps will increase as continued 
dredging operations impinge upon the navigable portion of the channel.
    In light of the foregoing, we have determined that immediate action 
is required to establish additional regulations for vessels operating 
in the vicinity of Bergen Point while U.S. Army Corps of Engineers 
dredging operations continue. These circumstances provide good cause 
for not publishing an NPRM. Similarly, the Coast Guard finds that good 
cause exists for making this rule effective less than 30 days after 
publication in the Federal Register. Any delay encountered in this 
rule's effective date would be unnecessary and contrary to public 
interest since immediate action is needed to restrict commercial vessel 
transits in the waterway and protect the maritime public from the 
hazards associated with changing vessel traffic patterns during this 
dredging project.

Background and Purpose

    The United States Army Corps of Engineers and the Port Authority of 
New York/New Jersey commenced an extensive channel-dredging project in 
the Kill Van Kull in April 1999. On May 16, 2002, Kill Van Kull Channel 
Lighted Buoys 10 and 12 (LLNR 37300 and 37310) and Bergen Point Lighted 
Buoy 14 (LLNR 37325) were relocated to facilitate dredging of the 
Bergen Point West Reach of the Kill Van Kull. Since these buoys were 
relocated, one vessel collided with the Bergen Point Buoy and moved it 
off-station requiring Coast Guard assets to be diverted from other 
safety and security missions in the Port of New York and New Jersey 
while re-establishing the buoy on its assigned location. More than half 
of the vessels over 700 feet long transiting this area were unable to 
safely navigate the narrow southern channel during periods of high 
current and moderate winds. Instead, they had to depart from the 
temporary boundaries of the channel and proceed through a portion of 
the closed area north of the Kill Van Kull Lighted Buoy 10. There have 
also been several near collisions between tugs and barges in this area. 
In order to protect life, property and the marine environment, the 
Coast Guard is establishing the following additional requirements for 
commercial vessels transiting Bergen Point West Reach of the Kill Van 
Kull:
    Tug Requirements: All vessels 350 feet in length, or greater, 
excluding tugs with tows, require one assist tug. All vessels 700 feet 
in length, or greater, excluding tugs with tows, require two assist 
tugs. All vessels 900 feet in length, or greater, excluding tugs with 
tows, require three assist tugs.
    Tidal Current Restrictions: Vessels 700 feet in length, or greater, 
are restricted to movements within one hour before or after slack 
water, as measured from the Bergen Point current station.
    Astern Tows: Hawser tows are not permitted unless an assist tug 
accompanies the tow.
    Wind Conditions: In sustained winds from 20 to 34 knots: (1) Cargo 
ships may not transit; (2) tankers in ballast may not transit; (3) tugs 
pushing or towing alongside tank barges 350 feet in length, or greater, 
in light condition, require an assist tug. In sustained winds greater 
than 34 knots, vessels 300 gross tons or greater and all tugs with tows 
are prohibited from transiting.
    Nearly identical restrictions were imposed during a previous 
dredging project conducted in the same area from 1991 to 1992. They 
were instituted after three groundings, which resulted in one oil spill 
and one channel blockage. In anticipation of the current dredging 
project, the Coast Guard worked closely with local pilots and 
commercial waterway users to devise a system of regulations that would 
reduce the likelihood of similar mishaps from recurring. We sought to 
determine whether less restrictive regulations could be developed that 
would adequately ensure the interests of safe navigation. After 
extensive consultation, computer simulations and other analysis, we 
concluded that the regulations codified at 33 CFR 165.165 would 
adequately protect the interests of safe navigation in the vicinity of 
Bergen Point during the U.S. Army Corps of Engineers navigation 
improvement project. As previously discussed, recent, actual experience 
with those regulations demonstrates the need for these additional 
restrictions on

[[Page 42725]]

commercial vessels operating in that area. Vessel Traffic Service New 
York has already met with Pilots and Tug companies operating in the 
port to explain the need for these restrictions. These restrictions 
will be in place until March 30, 2003. They will be cancelled if 
dredging operations in the vicinity of Bergen Point conclude before 
that date.

Regulatory Evaluation

    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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Transportation 
(DOT) (44 FR 11040, February 26, 1979).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under paragraph 10e of the regulatory 
policies and procedures of DOT is unnecessary. This finding is based on 
the fact that the overwhelming majority of vessels transiting through 
the Bergen Point portion of the Kill Van Kull that would be required by 
this rule to utilize tug assistance are already employing that service 
as a matter of prudence; only those vessels not observing this ``best 
practice'' will be affected. Vessels 700 feet in length, or greater, 
could encounter slight delays while awaiting optimal tidal currents. 
Those delays can be mitigated or avoided by appropriate arrival and 
departure planning. The actual impact of this rule is minimal insofar 
as each of the provisions of this rule could be imposed, on a case-by-
case basis, upon individual vessels transiting through Bergen Point 
under Vessel Traffic Services New York's existing authority to 
establish VTS Measures pursuant to 33 CFR 161.11. Rather than rely upon 
ad hoc measures, we believe that the maritime public is better served 
by having advance, certain knowledge of these requirements to 
facilitate ready-reference and planning. Advance notifications will be 
made to the local maritime community by the Local Notice to Mariners, 
marine information broadcasts, and at New York Harbor Operations 
Committee meetings.

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 commercial vessels 
intending to transit Bergen Point West Reach of the Kill Van Kull. This 
RNA will not have a significant economic impact on a substantial number 
of small entities for the following reasons: Kill Van Kull accommodates 
approximately 26,000 vessels transits annually; the overwhelming 
majority of vessels that would be required to utilize tug assistance 
while transiting the Bergen Point portion of the Kill Van Kull are 
already employing that service as a matter of prudence; only the small 
percentage of vessels not observing this ``best practice'' will be 
affected by this regulation; we know of no specific small entities 
among that small number. Any small entities that might be affected by 
this rule are invited to submit comments, which may result in 
modifications to the rule.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), the Coast Guard wants to 
assist small entities in understanding this final rule so that they can 
better evaluate its potential effects on them and participate in the 
rulemaking. If your small business or organization would be affected by 
this rule and you have questions concerning its provisions or options 
for compliance, please call Lieutenant Commander C. Nichols, Vessel 
Traffic Service, Coast Guard Activities New York at (718) 354-4191. 
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).

Collection of Information

    This 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 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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect 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 might 
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.

[[Page 42726]]

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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have considered the environmental impact of this rule and 
concluded that, under figure 2-1, paragraph 34(g), of Commandant 
Instruction M16475.1D, this rule is categorically excluded from further 
environmental documentation. This rule fits paragraph 34(g) as it 
revises a Regulated Navigation Area. A ``Categorical Exclusion 
Determination'' is available in the docket for inspection or copying 
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 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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; 49 CFR 1.46.

    2. From June 17, 2002 to March 30, 2003, amend Sec. 165.165 to add 
paragraph (d)(10) 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

* * * * *
    (d) * * *
    (10) Bergen Point West Reach. In addition to the requirements in 
paragraphs (d)(1) through (d)(9) of this section, the following 
provisions apply to vessels transiting in or through Work Areas (4) and 
(5):
    (i) Tug requirements. All vessels 350 feet in length, or greater, 
excluding tugs with tows, require one assist tug. All vessels 700 feet 
in length, or greater, excluding tugs with tows, require two assist 
tugs. All vessels 900 feet in length, or greater, excluding tugs with 
tows, require three assist tugs.
    (ii) Tidal current restrictions. Vessels 700 feet in length, or 
greater, are restricted to movements within one hour before or after 
slack water, as measured from the Bergen Point current station.
    (iii) Astern tows. Hawser tows are not permitted unless an assist 
tug accompanies the tow.
    (iv) Sustained winds from 20 to 34 knots. In sustained winds from 
20 to 34 knots:
    (A) cargo ships and tankers in ballast may not transit Work Areas 
(4) and (5);
    (B) tugs pushing or towing alongside tank barges 350 feet in 
length, or greater, in light condition, require an assist tug in Work 
Areas (4) and (5).
    (v) Sustained winds greater than 34 knots. In sustained winds 
greater than 34 knots, vessels 300 gross tons or greater and all tugs 
with tows are prohibited from transiting Work Areas (4) and (5).

    Dated: June 17, 2002.
V.S. Crea,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 02-15967 Filed 6-24-02; 8:45 am]
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