[Federal Register Volume 69, Number 250 (Thursday, December 30, 2004)]
[Rules and Regulations]
[Pages 78307-78310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28549]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-152]
RIN 1625-AA11


Regulated Navigation Area; East Rockaway Inlet to Atlantic Beach 
Bridge, Nassau County, Long Island, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule with request for comments.

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SUMMARY: The Coast Guard is re-establishing a temporary regulated 
navigation area (RNA) that was in effect from 6 December to 10 
December, until 10 March 2005. The area of this RNA covers the entrance 
of East Rockaway Inlet to the Atlantic Beach Bridge, Nassau County, New 
York. This rule restricts the passage of commercial vessels carrying 
petroleum products with a loaded draft in excess of five feet. 
Significant shoaling in this area has reduced the depths of the 
navigable channel making the area unsafe for passage of vessels with 
drafts of greater than five feet carrying petroleum products as cargo. 
Operators of such vessels may request transit of the area on a trip-by-
trip basis to the Captain of the Port, Long Island Sound, New Haven, 
Connecticut.

DATES: This rule is effective from 12:01 a.m. on December 11, 2004 
until 11:59 p.m. on March 10, 2005. Comments must be received on or 
before January 10, 2005.

ADDRESSES: Comments should be mailed to the Waterways Management 
Officer, Coast Guard Group/Marine Safety Office Long Island Sound, 120 
Woodward Ave., New Haven, CT 06512. Comments received, along with 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD01-04-152 and will be available for inspection or 
copying at Group/MSO Long Island Sound, New Haven, CT, at the address 
above, between 9 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant A. Logman, Waterways 
Management Officer, Coast Guard Group/Marine Safety Office Long Island 
Sound at (203) 468-4429.

SUPPLEMENTARY INFORMATION:

Request for Comments and Public Meeting

    Interested persons are invited to participate in this rulemaking by 
submitting written views, comments, data, or arguments. Persons 
submitting comments should include their names and addresses, identify 
this rulemaking (CGD01-04-152), the specific section of this rule to 
which each comment applies, and give reasons for each comment. The 
Coast Guard requests that all comments and attachments be submitted in 
an 8\1/2\ x 11 unbound format suitable for 
copying and electronic filing. If that is not practical, a second copy 
of any bound material is requested. Persons desiring acknowledgment 
that their comments have been received should enclose a stamped, self-
addressed post card or envelope.
    The Coast Guard will consider all comments received during the 
comment period, and may modify this temporary final rule in light of 
comments received. The Coast Guard plans no public hearing. Persons may 
request a public hearing by writing to Waterways Management Officer, 
Group/Marine Safety Office Long Island Sound at the address listed 
under ADDRESSES above. The request should include reasons why a hearing 
would be beneficial. If it determines that the opportunity for oral 
presentations will aid this rulemaking, the Coast Guard will hold a 
public hearing at a time and place announced by a later notice in the 
Federal Register.
    In accordance with 5 U.S.C. 553(d)(3) good cause exists for 
publishing a temporary final rule without a prior comment period. Due 
to the immediate need for the protection of the maritime public, it is 
impracticable to publish a NPRM in advance. Delaying this rule to 
provide for a notice and comment period would be impracticable, 
unnecessary and contrary to the public interest. Any delay in 
implementing this rule would be contrary to public interest as 
immediate action is needed to prevent vessels, carrying petroleum 
products as cargo with a loaded draft of greater than five feet, from 
transiting the area so as to avoid the potential hazards associated 
with a grounding of a vessel carrying petroleum products as cargo.

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that 
good cause exists for not publishing an NPRM. Due to the immediate need 
for the protection of the maritime public, it is impracticable to 
publish a NPRM in

[[Page 78308]]

advance. Thus, 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. Any delay in implementing 
this rule would be contrary to public interest as immediate action is 
needed to prevent vessels, carrying petroleum products as cargo with a 
loaded draft of greater than five feet, from transiting the area so as 
to avoid the potential hazards associated with a grounding of a vessel 
carrying petroleum products as cargo.
    On December 3, 2004, the M/V KRISTIN POLING, a small coastal 
tanker, ran aground at high tide south of East Rockaway Inlet, Nassau 
County, New York. East Rockaway Inlet has experienced significant 
shoaling causing the channel to migrate towards the west. The shoaling 
in this area has reduced depths to a point where transit for vessels 
drawing greater than five feet presents a danger of grounding. The 
delay inherent in the NPRM process is contrary to the public interest 
and impracticable, as immediate action is needed to minimize the 
potential danger posed by the possibility of further groundings of 
tankers and the potential resultant oil spills in and around this 
regulated navigation area.
    On 4 December 2004, the First Coast Guard District Commander 
implemented a temporary RNA (CGD01-04-150), effective from 6 p.m. on 
December 4, 2004 to 11:59 p.m. on December 10, 2004. Since the 
establishment of that area, we have determined that the continued 
application of these restrictions is prudent to protect the maritime 
public.

Background and Purpose

    On Friday December 3, 2004, the M/V KRISTIN POLING, a small coastal 
tanker carrying approximately 18,000 barrels of home heating oil, ran 
aground at high tide south of East Rockaway Inlet, approximately \1/4\ 
mile west of Silver Point at the end of Atlantic Beach. This grounding 
presented the potential for a major oil spill. The M/V KRISTIN POLING 
was en route to Sprague Energy Oceanside terminal, a home heating oil 
distributor located in Oceanside, Long Island, New York, a major 
supplier of home heating oil for western Long Island. The M/V KRISTIN 
POLING conducted lightering operations on scene until the vessel was 
re-floated. No product was discharged into the water as a result of 
this grounding. East Rockaway Inlet has experienced significant 
shoaling causing the channel to shift towards the west. The shoaling in 
this area has reduced depths to a point where transit for vessels 
drawing greater than five feet presents a danger of grounding, and the 
potential for a significant oil spill. East Rockaway Inlet is scheduled 
to be dredged by contractors for the U.S. Army Corps of Engineers 
beginning December 11, 2004. Once completed, vessels will be able to 
safely transit the inlet. Although the dredge project is expected to 
require 45 days to complete, delays can be expected due to inclement 
weather, warranting a longer effective period for this rulemaking to 
ensure adequate protections for the marine community and environment 
for the entire dredging period. Once the dredge project is complete, 
the RNA established herein will be cancelled.

Discussion of Rule

    This rule will provide for the safety of vessel traffic in and 
around East Rockaway Inlet, Long Island, New York. This regulation 
establishes a temporary RNA on the navigable waters of the East 
Rockaway Inlet in an area bounded by lines drawn from the approximate 
position of the Silver Point breakwater buoy (LLN 31500) at 40[deg]34' 
56'' N, 073[deg]45' 19'' W, running north to a point of land on the 
northwest side of the inlet at position 40[deg]35' 28'' N, 073[deg]46' 
12'' W, thence easterly along the shore to the east side of the 
Atlantic Beach Bridge, State Route 878, over East Rockaway Inlet, 
thence across said bridge to the south side of East Rockaway Inlet, 
thence westerly along the shore and across the water to the beginning. 
This rule prohibits the transit of vessels carrying petroleum products 
as cargo with a loaded draft greater than five feet through the 
regulated navigation area. Operators of such vessels wishing to transit 
the regulated navigation area may submit a request to the Captain of 
the Port, Long Island Sound on a trip-by-trip basis. The request must 
include the proposed under-keel-clearance, taking into account the 
predicted tide. This RNA is in effect from 12:01 a.m. on December 11, 
2004 until 11:59 p.m. on March 10, 2005.
    Any violation of the regulated navigation area described herein, is 
punishable by, among others, civil and criminal penalties, in rem 
liability against the offending vessel, and license sanctions.
    The Captain of the Port Long Island Sound will notify the maritime 
community of the periods during which the regulated navigation area 
will be enforced. Broadcast notifications will be made to the maritime 
community advising them of the boundaries of the regulated navigation 
area.

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 will be so minimal that 
a full Regulatory Evaluation under the regulatory policies and 
procedures of DHS is unnecessary. This regulation may have some impact 
on the public, but the potential impact will be minimized for the 
following reasons: The RNA limits only vessels carrying petroleum 
products as cargo with a loaded draft of greater than five feet; 
operators of vessels with a loaded draft of greater than five feet may 
request permission to transit the regulated navigation area from the 
Captain of the Port, Long Island Sound. COTP Long Island Sound is 
working with the U.S. Army Corps of Engineers to have an accurate 
survey of East Rockaway Inlet conducted to determine whether there is 
adequate water for vessels to transit this inlet prior to dredging 
being completed. This survey will enable the COTP to quickly and 
appropriately assess requests to transit East Rockaway Inlet for the 
effective period of this RNA. Recreational and other maritime traffic 
is not prohibited from transiting this area.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will 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 may affect the following entities, some of which 
may be small entities: the owners or operators of vessels carrying 
petroleum products intending to transit or anchor in those portions of 
the East Rockaway Inlet covered by the regulated navigation area; and 
Sprague Energy Oceanside, located in Oceanside, Long Island, New

[[Page 78309]]

York, a supplier of home heating oil, and Keyspan E.S. Barrett, an 
electrical power generation facility, located in Island Park, Long 
Island, New York, which receive the vessels affected by this regulated 
navigation area. For the reasons outlined in the Regulatory Evaluation 
section above, this rule will not have a significant impact on a 
substantial number of small entities.
    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 subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard 
wants to assist small entities in understanding this rule so that they 
can better evaluate its effects on them and participate in the 
rulemaking process. If this rule will affect your small business, 
organization, or governmental jurisdiction and you have questions 
concerning its provisions or options for compliance, please call 
Lieutenant A. Logman, Waterways Management Officer, Group/Marine Safety 
Office Long Island Sound, at (203) 468-4429.
    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 will not concern 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 will 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.
    To help the Coast Guard establish regular and meaningful 
consultation and collaboration with Indian and Alaskan Native tribes, 
we published a notice in the Federal Register (66 FR 36361, July 11, 
2001) requesting comments on how to best carry out the Order. We invite 
your comments on how this rule might impact tribal governments, even if 
that impact may not constitute a ``tribal implication'' under the 
Order.

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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    The Coast Guard 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. 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.


0
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

0
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.

[[Page 78310]]

107-295, 116 Stat. 2064; Department of Homeland Security Delegation 
No. 0170.1.


0
2. From 12:01 a.m. on December 11, 2004 until 11:59 p.m. on March 10, 
2004, add temporary Sec.  165.T01-152 to read as follows:


Sec.  165.T01-152  Regulated Navigation Area, East Rockaway Inlet to 
Atlantic Beach Bridge, Nassau County, Long Island, New York

    (a) Location. The following area is established as a Regulated 
Navigation Area: All waters of East Rockaway Inlet in an area bounded 
by lines drawn from the approximate position of the Silver Point 
breakwater buoy (LLN 31500) at 40[deg]34'56'' N, 073[deg]45'19'' W, 
running north to a point of land on the northwest side of the inlet at 
position 40[deg]35'28'' N, 073[deg]46'12'' W, thence easterly along the 
shore to the east side of the Atlantic Beach Bridge, State Route 878, 
over East Rockaway Inlet, thence across the bridge to the south side of 
East Rockaway Inlet, thence westerly along the shore and across the 
water to the beginning.
    (b) Regulations. (1) Vessels carrying petroleum products as cargo, 
with a loaded draft greater than five feet, are prohibited from 
transiting within the regulated navigation area.
    (2) Operators of vessels carrying petroleum products as cargo with 
a loaded draft greater than five feet may submit a request to transit 
the regulated navigation area, on a trip-by trip basis, to the Captain 
of the Port, Long Island Sound. The request must include the proposed 
under keel clearance for the transit, taking into account the predicted 
tide.
    (c) Effective period. This temporary final rule is effective from 
12:01 a.m. on December 11, 2004 until 11:59 p.m. on March 10, 2004.

    Dated: December 10, 2004.
David P. Pekoske,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 04-28549 Filed 12-29-04; 8:45 am]
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