[Federal Register Volume 67, Number 171 (Wednesday, September 4, 2002)]
[Rules and Regulations]
[Pages 56488-56490]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22494]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD01-02-090]
RIN 2115-AE84


Safety Zone; East River, Manhattan, NY

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a safety zone in a portion of 
the waters of the East River, Western Channel, between Manhattan and 
Roosevelt Island, NY. This action is necessary to provide for the 
safety of construction crews and motorists during rehabilitation of a 
portion of the Franklin Delano Roosevelt (FDR) Drive between East 56th 
Street and East 63rd Street in Manhattan, NY. This action is intended 
to prevent vessels from the hazards associated with construction, 
operation and disassembly of a temporary Outboard Detour Roadway and 
its protective fendering system, and to minimize the risk of allision 
with those structures, once constructed, by restricting marine traffic 
within the zone.

DATES: This rule is effective at 7 a.m. on September 16, 2002.

ADDRESSES: 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 (CGD01-02-090) and are available for inspection or 
copying at room 205, Coast Guard Activities New York, 212 Coast Guard 
Drive, Staten Island, NY 10305, between 8 a.m. and 3 p.m., Monday 
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Luis E. Martinez, Waterways 
Oversight Branch, Coast Guard Activities New York, at (718) 354-4193.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On July 26, 2002, we published a notice of proposed rulemaking 
(NPRM) entitled ``Safety Zone; East River, Manhattan, NY'', in the 
Federal Register (67 FR 48832). We received no letters commenting on 
the proposed rule. No public hearing was requested, and none was held.
    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. Due to the date the final 
construction and vessel restriction plans were completed and reviewed 
by the Port of NY/NJ Harbor Operations Committee and Harbor Pilots, 
there was insufficient time to draft and publish both an NPRM and final 
rule more than 30 days before the effective date. Rather than shorten 
the NPRM comment period, our NPRM advised the public that the rule 
would take effect on or about September 1, 2002--less than 30 days 
following its anticipated publication. Further, the safety zone is 
intended to protect vessels from the hazards associated with 
construction, operation and disassembly of a temporary Outboard Detour 
Roadway and its protective fendering system, and to minimize the risk 
of allision with those structures, once constructed, by restricting 
marine traffic within the zone. Any delay encountered in this rule's 
effective date would be unnecessary and contrary to public interest 
since immediate action is needed to close the waterway and protect 
construction crews and motorists during rehabilitation of a portion of 
the FDR Drive between East 56th Street and East 63rd Street in 
Manhattan, NY.

Background and Purpose

    The New York State Department of Transportation (NYSDOT) is 
undertaking the rehabilitation of the FDR Drive in Manhattan, NY. The 
project is scheduled to begin on September 16, 2002 and to continue 
until approximately June 2007. It will include the building of a 
temporary Outboard Detour Roadway (causeway) adjacent to the northbound 
lanes of a portion of the FDR Drive that will provide three lanes of 
motor vehicle traffic over the Western Channel of the East River 
between East 56th Street and East 63rd Street in Manhattan.
    The temporary Outboard Detour Roadway will be protected from marine 
traffic interference by a fendering system positioned adjacent to and 
just outside the western edge of the navigable channel in the East 
River's Western Channel. The fendering system will run the length of 
the Outboard Detour Roadway. It is designed to withstand an allision by 
a vessel displacing 38,000 long tons (38,610 metric tons) striking at a 
speed of 6.8 knots and a 7.5 degree angle of approach.
    The rule will exclude all vessels from the immediate vicinity of 
the Outboard Detour Roadway during the construction, operation and 
disassembly of the structure and its protective fendering system. By 
excluding marine traffic, the zone will protect maritime users from the 
hazards associated with the construction, operation and disassembly of 
those structures and protect Outboard Detour Roadway users from the 
risk of vessel allision or interference with that structure. The safety 
zone will commence on September 16, 2002.
    In order to provide further protection for roadway users, we 
contemplate the subsequent establishment of a Regulated Navigation Area 
(RNA) in the Western Channel of the East River between 23rd Street, 
Manhattan (Poorhouse Flats Range) and East 96th Street, Manhattan 
(Hells Gate). No vessel with a displacement of greater than 38,000 long 
tons would be permitted to enter the RNA without tugboat assistance. 
That RNA will be the subject of separate rulemaking process as we draw 
closer to the projected opening of the Outboard Detour Roadway in 2004.

Discussion of Comments and Changes

    The Coast Guard received no letters commenting on the proposed 
rulemaking. No changes were made to this rulemaking.

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 10(e) of the regulatory policies and procedures of DOT is 
unnecessary.
    The effect of this regulation will not be significant as it will 
not prevent maritime traffic from navigating the East River, Western 
Channel. The safety zone merely prevents vessels from entering a 
relatively small area of water west of the navigable channel to prevent 
interference with the construction, operation and disassembly of an 
Outboard Detour Roadway and its protective fendering system.

[[Page 56489]]

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
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 vessels intending 
to enter a small portion of the East River, Western Channel, during the 
times the safety zone is in effect.
    This rule will not have a significant economic impact on a 
substantial number of small entities because it will not prevent 
maritime traffic from navigating the East River. The safety zone merely 
prevents vessels from entering a relatively small area of water west of 
the navigable channel in order to prevent interference with the 
construction, operation and disassembly of an Outboard Detour Roadway 
and its protective fendering system.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. We 
received no further requests for assistance from small entities.
    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 calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not 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 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. 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 
establishes a safety zone. 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 amends 
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, and 160.5; 49 CFR 1.46.


    2. Add Sec. 165.167 to read as follows:


Sec. 165.167  Safety Zone: East River Western Channel, Manhattan, NY.

    (a) Location. The waters of the East River enclosed by the 
following boundaries are established as a safety zone: beginning on the 
Manhattan riverbank at a point 40[deg]45'35.7'' N, 073[deg]57'25.2'' W 
(Point A), thence southeasterly to a point 40[deg]45'34.8'' N, 
073[deg]57'23.2'' W (Point B), thence southwesterly along the western 
boundary of the federal navigable channel to a point 40[deg]45'09.5'' 
N, 073[deg]57'46.3'' W (Point C), then northwesterly to the Manhattan 
riverbank at a point 40[deg]45'10.5'' N, 073[deg]57'48.9'' W (Point D), 
thence northeasterly along the riverbank to the place of beginning 
(Point A). All coordinates are North American Datum 1983.

[[Page 56490]]

    (b) Regulations. The general regulations contained in Sec. 165.23 
of this part apply.

    Dated: August 27, 2002.
N.E. Merkle,
Captain, U.S. Coast Guard, Captain of the Port, New York, Acting.
[FR Doc. 02-22494 Filed 9-3-02; 8:45 am]
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