[Federal Register Volume 68, Number 136 (Wednesday, July 16, 2003)]
[Proposed Rules]
[Pages 41984-41987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17906]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-03-066]
RIN 1625-AE84


Regulated Navigation Area; Arthur Kill, NY and NJ

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a Regulated Navigation 
Area (RNA) to impose restrictions on vessels transiting to the North of 
Shooters Island Reach, Elizabethport Reach, and Gulfport Reach of the 
Arthur Kill during U.S. Army Corps of Engineers dredging operations in 
those areas. This action is necessary to provide for the safety of life 
and property on navigable waters during Army Corps of Engineers and 
Port Authority of New York/New Jersey 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: Comments and related material must reach the Coast Guard on or 
before August 15, 2003.

ADDRESSES: You may mail comments and related material to Waterways 
Oversight Branch (CGD01-03-066), Coast Guard Activities New York, 212 
Coast Guard Drive, room 204, Staten Island, New York 10305. 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, will become part of this docket and will 
be available for inspection or copying at room 204, Coast Guard 
Activities New York, between 8 a.m. and 3 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander E. Morton, 
Waterways Oversight Branch, Coast Guard Activities New York at (718) 
354-4012.

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-
066), indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, 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 proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Waterways Oversight Branch at 
the address under ADDRESSES explaining why one 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

    The Arthur Kill Channel is the proposed area to be designated as an 
RNA. This channel is located in the waters between Elizabeth, NJ and 
Staten Island, NY. The proposed RNA would enhance vessel safety during 
the extensive channel-deepening project being undertaken by the U.S. 
Army Corps of Engineers, which involves dredging and blasting in these 
areas. 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 45 foot controlling depths of Ambrose 
and Anchorage Channels must lighter some of their cargo to barges in 
the deep New York Harbor Anchorage Grounds in order to safely transit 
the 35 foot Arthur Kill. This results in substantial lightering and 
delay costs.
    Container vessels cannot lighter in the Anchorage Grounds and 
therefore must load to less than full drafts. This project, which is 
expected to last approximately five years, will deepen the existing 35-
foot channels to 41 feet to accommodate deeper draft vessels. The 
dredging areas will continue to be available for use by the general 
public.
    Proposed restrictions on vessel transits during this project are as 
follows: (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). One-way traffic will be maintained during 
this project in the active work areas. Permission to transit the work 
area will normally not be given during blasting operations.
    (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) Vessel Movement Reporting System users are prohibited from 
meeting or overtaking other vessels when transiting alongside an active 
work area.
    (5) Vessel Movement Reporting System users transiting with the 
prevailing current (as measured from the Bergen Point current station) 
are regarded as the stand-on vessel.
    (6) Prior to entering the RNA, the master, pilot or operator of 
each Vessel Movement Reporting System user 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) 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.
    (8) Tugs with tows includes a tug with a vessel or barge in tow, 
alongside, or being pushed.
    (9) 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 a minimum of 
two assist tugs. All vessels 900 feet in length, or greater, excluding 
tugs with tows, require a minimum of three assist tugs.
    (10) 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.
    (11) Astern tows. Hawser tows are not permitted unless an assist 
tug accompanies the tow.

[[Page 41985]]

    (12) When sustained winds are greater than 20 knots, as measured at 
the Bayonne Bridge meteorological sensor, vessels are prohibited from 
backing out of the Howland Hook Marine Terminal.
    (13) Sustained winds from 20 to 34 knots. In sustained winds from 
20 to 34 knots: (i) Cargo ships and tankers in ballast may not transit 
the RNA; (ii) tugs pushing or towing alongside tank barges 350 feet in 
length, or greater, in light condition, require an assist tug in the 
RNA.
    (14) 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 the RNA.
    (15) When visibility is less than one nautical mile the entire work 
zone is closed to vessels over 350 feet in length and all tugs with 
tows.
    (16) The Vessel Traffic Service New York Director may impose 
additional requirements through VTS measures, as per 33 CFR 161.11, 
when the dredge is working in the most restricted areas of the 
waterway.
    This proposed rulemaking is needed to reduce the risks of 
collisions, groundings, and other navigational mishaps associated with 
this project. These proposed restrictions are similar to those 
currently in place to the east of the proposed RNA for the ongoing Kill 
Van Kull RNA codified at 33 CFR 165.165. They were originally 
instituted during 1991-1992 when dredging was last conducted in this 
vicinity. They were instituted at that time in response to three 
groundings that resulted in one oil spill and one channel blockage.
    Public notifications for specific dredging dates and dredging areas 
within the RNA will be made prior to the commencement of dredging via 
the Local Notice to Mariners, marine information and facsimile 
broadcasts, at New York Harbor Operations Committee meetings and on the 
internet at:  http://www.harborops.com.
    The proposed regulation would become effective on Monday, September 
1, 2003.

Discussion of Proposed Rule

    The proposed RNA encompasses all waters of the North of Shooters 
Island Reach, Elizabethport Reach, and Gulfport Reach in the Arthur 
Kill. This proposed rule is necessary to safeguard marine traffic from 
the dangers of the dredging and blasting work proposed in the project 
area.

Regulatory Evaluation

    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. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Homeland Security (DHS).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.
    This finding is based on the following 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 7 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 Authority of New York/New Jersey is working with the Army 
Corps of Engineers on this project to ensure future generations of deep 
draft vessels are able to use the Port of NY/NJ; 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, marine information and facsimile 
broadcast, 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 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.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule would affect the following entities, some of 
which might be small entities: The owners or operators of vessels 
intending to transit a portion of the North of Shooters Island Reach, 
Elizabethport Reach, or Gulfport Reach of the Arthur Kill during the 
time this RNA is effective.
    This RNA would not have a significant economic impact on a 
substantial number of small entities for the following 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 7 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 Authority of New York/New Jersey is working with the Army 
Corps of Engineers on this project to ensure future generations of deep 
draft vessels are able to use the Port of NY/NJ; and it will reduce 
substantial costs associated with lightering operations currently 
required by vessels unable to transit the harbor fully loaded. Before 
the effective date we will ensure wide dissemination of maritime 
advisories widely available to users of the Arthur Kill by the Local 
Notice to Mariners, marine information and facsimile broadcast, at New 
York Harbor Operations Committee meetings, and on the internet at 
http://www.harborops.com.
    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 E. Morton, 
Waterways Oversight Branch, Coast Guard Activities New York at (718) 
354-4012.

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

[[Page 41986]]

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.

Environment

    We have considered the environmental impact of this proposed rule 
and concluded that, under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation. This proposed rule fits paragraph 34(g) as 
it establishes a Regulated Navigation Area. A ``Categorical Exclusion 
Determination'' is available in the docket 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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 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 Sec.  165.171 to read as follows:


Sec.  165.171  Regulated Navigation Area; Arthur Kill, NY and NJ.

    (a) Regulated Navigation Area. The following area is a Regulated 
Navigation Area: All waters of the North of Shooters Island Reach, 
Elizabethport Reach, and Gulfport Reach in the Arthur Kill.
    (b) Enforcement period. This section will be enforced from 8 a.m. 
on Monday, September 1, 2003 until the dredging project is completed.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply.
    (2) All persons and vessels shall comply with the instructions of 
the Coast Guard Captain of the Port or the designated on-scene-patrol 
personnel. These personnel comprise commissioned, warrant, and petty 
officers of the Coast Guard. Upon being hailed by a U. S. Coast Guard 
vessel by siren, radio, flashing light, or other means, the operator of 
a vessel shall proceed as directed.
    (3) 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). One-way traffic will be maintained during 
this project in the active work areas. Permission to transit the work 
area will normally not be given during blasting operations.
    (4) 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.
    (5) 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.
    (6) Vessel Movement Reporting System users are prohibited from 
meeting or overtaking other vessels when transiting alongside an active 
work area.
    (7) Vessel Movement Reporting System users transiting with the 
prevailing current (as measured from the Bergen Point current station) 
are regarded as the stand-on vessel.
    (8) Prior to entering the RNA, the master, pilot or operator of 
each Vessel Movement Reporting System user 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.
    (9) 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.
    (10) Tugs with tows includes a tug with a vessel or barge in tow, 
alongside, or being pushed.
    (11) 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 a minimum of 
two assist tugs. All vessels 900 feet in length, or greater, excluding 
tugs with tows, require a minimum of three assist tugs.
    (12) Tidal current restrictions. Vessels 700 feet in length, or 
greater, are restricted to movements within one

[[Page 41987]]

hour before or after slack water, as measured from the Bergen Point 
current station.
    (13) Astern tows. Hawser tows are not permitted unless an assist 
tug accompanies the tow.
    (14) When sustained winds are greater than 20 knots, as measured at 
the Bayonne Bridge meteorological sensor, vessels are prohibited from 
backing out of the Howland Hook Marine Terminal.
    (15) Sustained winds from 20 to 34 knots. In sustained winds from 
20 to 34 knots:
    (i) Cargo ships and tankers in ballast may not transit the RNA;
    (ii) Tugs pushing or towing alongside tank barges 350 feet in 
length, or greater, in light condition, require an assist tug in the 
RNA.
    (16) 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 the RNA.
    (17) When visibility is less than one nautical mile the entire work 
zone is closed to vessels over 350 feet in length and all tugs with 
tows.
    (18) The Vessel Traffic Service New York Director may impose 
additional requirements through VTS measures, as per 33 CFR 161.11, 
when the dredge is working in the most restricted areas of the 
waterway.

    Dated: July 9, 2003.
John L. Grenier,
Captain, Coast Guard, Acting Commander, First Coast Guard District.
[FR Doc. 03-17906 Filed 7-15-03; 8:45 am]
BILLING CODE 4910-15-U