[Federal Register Volume 70, Number 241 (Friday, December 16, 2005)]
[Rules and Regulations]
[Pages 74676-74679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24135]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-05-106]
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.

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SUMMARY: The Coast Guard is establishing a temporary regulated

[[Page 74677]]

navigation area from the entrance of East Rockaway Inlet to the 
Atlantic Beach Bridge, Nassau County, New York. This regulated 
navigation area restricts 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 and has increased the risk of vessels with drafts of 
greater than five feet carrying petroleum products as cargo grounding 
in the channel, and the potential for a significant oil spill.

DATES: This rule is effective from 6 a.m. on November 29, 2005 until 
11:59 p.m., on May 31, 2006.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD01-05-106 and will be available for 
inspection or copying at Sector Long Island Sound, New Haven, CT, 
between 9 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant A. Logman, Chief, Waterways 
Management Division, Coast Guard Sector Long Island Sound at (203) 468-
4429.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Under 5 U.S.C. 553(b)(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 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 since 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.
    East Rockaway Inlet has experienced significant shoaling causing 
the channel to migrate towards the west. Water depths in the federal 
navigation channel have been reduced in some areas to as low as 5 feet. 
This channel was last dredged by the Army Corps of Engineers during the 
winter of 2004/2005. However, the shoaling in this area has reduced 
depths to a point where transit for vessels drawing greater than five 
feet increases the immediate risk of grounding. Therefore, the Coast 
Guard is relocating the channel buoys to the west to account for 
channel migration. The delay inherent in the NPRM process is contrary 
to the public interest and impracticable, as urgent action is needed to 
minimize the potential danger posed by the possibility of groundings of 
tankers and the potential resultant oil spills in and around this 
regulated navigation area. The effective period of this regulation will 
provide the Coast Guard with the necessary time to conduct notice and 
comment rulemaking in order to establish a permanent regulated 
navigation area in East Rockaway Inlet.

Background and Purpose

    East Rockaway Inlet is on the South Shore of Long Island, in Nassau 
County, New York. The Inlet has experienced significant shoaling since 
dredging was completed in the late winter of 2004/2005, causing the 
channel to migrate towards the west. Water depths in the federal 
navigation channel have been reduced in some areas to as low as 5 feet. 
This channel was last dredged by the Army Corps of Engineers during the 
winter of 2004/2005. The channel buoys are being relocated to the west 
to account for channel migration. East Rockaway Inlet is frequented by 
small coastal tankers and tugs towing oil barges supplying two 
facilities: Sprague Energy Oceanside, located in Oceanside, Long 
Island, New York, a supplier of home heating oil for Long Island, New 
York, and Keyspan E.S. Barrett, an electrical power generation 
facility, located in Island Park, Long Island, New York. The shoaling 
in this area has reduced depths to a point where transit for vessels 
drawing greater than five feet increases the risk of immediate 
grounding, and the potential for a significant oil spill. Similar 
shoaling led to the grounding in late 2003 and in 2004 of small coastal 
tankers carrying home heating oil.

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 regulated navigation area (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. The rule described herein prohibits the transit of 
vessels carrying petroleum products as cargo with a loaded draft 
greater than five feet through the RNA. 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. The 
request must consist of a voyage plan that identifies acceptable 
parameters for transiting the RNA to the Captain of the Port, Long 
Island Sound. Parameters addressed shall include: Weather conditions 
for transit, restrictions due to state of tide, the loaded draft of the 
vessel, and minimum under keel clearance. The required general voyage 
plan must be submitted at least 48 hours prior to the vessel's first 
transit through the RNA. Vessels may only transit the RNA after 
receiving approval of the submitted voyage plan. This request and 
voyage plan need only be submitted one time for vessels operating in 
accordance with the approved plan. Vessel operators must submit any 
modifications, and receive approval thereof, from the Captain of the 
Port, Long Island Sound of any modifications to the approved voyage 
plan prior to transiting the RNA. Modifications to approved plans must 
be submitted to the COTP LIS at least 24 hours prior to the transit to 
which the modification applies. This RNA is in effect from 6 a.m. on 
November 29, 2005 until 11:59 p.m. on May 31, 2006.
    Any violation of the RNA 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 requirements of this regulated navigation area via 
broadcast notifications and notifications in the local notice to 
mariners.

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

[[Page 74678]]

may have some impact on the public, but the potential impact will be 
minimized for the following reasons: The regulated navigation area 
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. 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 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, Chief, Waterways Management Division, Coast Guard 
Sector 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

[[Page 74679]]

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 analyzed this rule under Commandant Instruction 
M16475.1D, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g) from further environmental documentation. 
This rule fits the category selected from paragraph (34)(g), as it 
establishes a safety zone. An Environmental Analysis Checklist and 
Categorical Exclusion Determination are available for review at the 
location listed 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 and 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.


0
2. From 6 a.m. on November 29, 2005 until 11:59 p.m. on May 31, 2006, 
add temporary Sec.  165.T01-106 to read as follows:


Sec.  165.T01-106   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 must submit a request to transit 
the regulated navigation area to the Captain of the Port, Long Island 
Sound, at least 48 hours prior to transiting the area. Requests to 
transit the area shall consist of a general voyage plan identifying 
parameters for transit, to include the following: Weather conditions 
for transit, restrictions due to state of tide, the loaded draft of the 
vessel, and minimum acceptable under keel clearance. Once approved, 
vessels may transit the area in accordance with the approved voyage 
plan. Any modification or deviation from approved voyage plans must be 
submitted to the Captain of the Port, Long Island Sound at least 24 
hours prior to the transit to which the modification applies.
    (c) Effective period. This rule is effective from 6 a.m. on 
November 29, 2005 until 11:59 p.m. on May 31, 2006.

    Dated: November 28, 2005.
David P. Pekoske,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 05-24135 Filed 12-15-05; 8:45 am]
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