[Federal Register Volume 68, Number 67 (Tuesday, April 8, 2003)]
[Rules and Regulations]
[Pages 16955-16958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8526]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-03-017]
RIN 1625-AA11


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, DHS.

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 March 30, 2003 to September 30, 
2004. Comments and related material must reach the Coast Guard on or 
before June 9, 2003.

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 
CGD01-03-017 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: Commander F. Fiumano, 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 this rulemaking (CGD01-03-
017), 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.
    Once dredging operations began in the Bergen Point portion of the 
navigation improvement project, it has become evident that the 
provisions of the original RNA were insufficient to ensure 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. Once those buoys were relocated, the 
Bergen Point Buoy was 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 to re-establish the buoy on-station. 
More importantly, other vessels were unable to navigate successfully 
within the temporary channel boundaries. More than half of the vessels 
over 700 feet long transiting the area were unable to safely navigate 
the narrow southern channel during periods of high current and moderate 
winds. And there were several near collisions between tugs and barges 
operating in the area. We determined that a significant risk of similar 
mishaps existed unless additional regulations were prescribed for 
vessels operating in the vicinity of Bergen Point while continued 
dredging

[[Page 16956]]

operations impinged upon the navigable portion of the channel.
    In light of the foregoing, immediate action was required to 
establish additional regulations for vessels operating in the vicinity 
of Bergen Point while U.S. Army Corps of Engineers dredging operations 
continued. On June 25, 2002, we published a temporary final rule (TFR) 
in the Federal Register (67 FR 42723) establishing additional 
restrictions on vessels transiting the Bergen Point West Reach of the 
Kill Van Kull. Those restrictions were only expected to be effective 
until March 30, 2003. During the week of February 3, 2003, the U.S. 
Army Corps of Engineers notified the Coast Guard that dredging in this 
section was behind schedule and would not be completed for 
approximately 12 to 18 months. During the week of February 10, 2003, 
the U.S. Army Corps of Engineers notified the Coast Guard that the 
approved dredged depth of the Kill Van Kull had been increased to 50 
feet from 45 feet.
    Due to the recent extension of the Army Corps of Engineers' 
dredging project, it is necessary to continue enforcement of the 
provisions currently codified in 33 CFR 165.165(d)(10). This TFR will 
essentially re-institute those operating requirements from the 
expiration of the current TFR through the expected completion of the 
project. 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 regulation'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 were 
also several near collisions between tugs and barges in this area.
    In order to protect life, property and the marine environment, the 
Coast Guard established the following additional requirements for 
commercial vessels transiting Bergen Point West Reach of the Kill Van 
Kull (Work Areas (4) and (5) of the dredging project):
    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, 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.
    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).
    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).
    Nearly identical restrictions had been imposed during a previous 
dredging project conducted in the same area from 1991 to 1992. Those 
regulations 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. 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, actual experience with 
those regulations demonstrated the need for additional restrictions on 
commercial vessels operating in that area. Vessel Traffic Service New 
York met with Pilots and Tug companies operating in the port to explain 
the need for these restrictions. Additional restriction for navigation 
in the vicinity of Bergen Reach were developed. On June 25, 2002, we 
published a ``Temporary final rule; request for comments'' in the 
Federal Register (67 FR 42723), which codified those requirements as 33 
CFR 165.165(d)(10). No comments were received, and the TFR provisions 
proved to be effective in preserving the interests of safe navigation 
in the vicinity of the Bergen Reach.
    We had anticipated that those restrictions would only be necessary 
until March 30, 2003. During the week of February 3, 2003, the U.S. 
Army Corps of Engineers notified the Coast Guard that dredging in this 
section was behind schedule and would not be completed for 
approximately 12 to 18 months. During the week of February 10, 2003, 
the U.S. Army Corps of Engineers notified the Coast Guard that the 
approved dredged depth of the Kill Van Kull had been increased to 50 
feet from 45 feet. Due to these extensions in the dredging project, the 
Coast Guard is enacting this TFR to maintain requirements identical to 
those currently codified at 33 CFR 165.165(d)(10) through September 30, 
2004.

Discussion of Temporary Rule

    This rule essentially extends the provisions currently codified at 
33 CFR 165.165(d)(10) by re-instituting identical requirements once 
that TFR expires. This TFR is necessary because the Army Corps of 
Engineers has extended its dredging project in the Kill Van Kull for 
approximately 18 months and expanded the scope of the project to dredge 
an additional five feet from the channel.

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 Homeland 
Security (DHS).
    We expect the economic impact of this rule to be so minimal that a 
full

[[Page 16957]]

Regulatory Evaluation under the regulatory policies and procedures of 
DHS 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 regulation 
to utilize tug assistance would most likely employ that service as a 
matter of prudence even in the absence of a regulation; only those 
vessels that would not observe that ``best practice'' will be affected; 
all interested stakeholders have been informed of these restrictions at 
Harbor Operations Committee meetings and are given the opportunity to 
comment on revisions that may be necessary; identical regulations have 
been in effect since June 25, 2002 without undue burden on waterway 
users; under current practice, we have had six positions available 
during each tidal current window for vessels over 700 feet long to 
transit, an average of two vessels transit during these transit 
windows, and no vessel has been required to wait for the next transit 
window since these regulations were originally established; moreover, 
each of the provisions of this rule could be imposed upon individual 
vessels transiting through Bergen Point under the existing authority of 
the Vessel Traffic Services New York.
    Advance notifications will be made to the local maritime community 
by the Local Notice to Mariners, marine information and electronic mail 
broadcasts, at New York Harbor Operations Committee meetings, and on 
the Internet at http://www.harborops.com.

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 vessel 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 would 
employ that service as a matter of prudence even in the absence of a 
regulation; only the small percentage of vessels not observing this 
``best practice'' will be affected by this regulation; moreover, we 
know of no specific small entities among that small number; all 
interested stakeholders have been informed of these restrictions at 
Harbor Operations Committee meetings and are given the opportunity to 
comment on revisions that may be necessary; the restrictions imposed by 
this rule are identical to those that have been enforced since June 25, 
2002 and which have not been unduly burdensome on waterway users; we 
currently have six positions available during each tidal current window 
for vessels over 700 feet long to transit, an average of two vessels 
transit during these transit windows, and no vessel has been required 
to wait for the next transit window since these regulations were 
originally established.
    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 (Public Law 104-121), we want to assist small 
entities in understanding this temporary rule so that we 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 Commander F. Fiumano, Vessel 
Traffic Service, Coast Guard Activities New York at (718) 354-4191.
    Small business 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 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 1-800-REG-FAIR (1-888-734-3247).

Collection of Information

    This temporary 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 temporary 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 temporary 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 temporary 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 temporary 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 temporary rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This temporary 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 temporary rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal

[[Page 16958]]

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, 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 temporary 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 temporary 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 where indicated under 
ADDRESSES. 165 as follows:

List of Subjects in 33 CFR Part 165

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


0
For the reasons discussed in the preamble, in 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. 1231; 50 U.S.C. 191, 33 CFR 1.05-1(g), 
6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation 
No. 0170.

0
2. From March 30, 2003 to September 30, 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: March 28, 2003.
Vivien S. Crea,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 03-8526 Filed 4-7-03; 8:45 am]
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