[Federal Register Volume 71, Number 105 (Thursday, June 1, 2006)]
[Rules and Regulations]
[Pages 31085-31088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5032]


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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; change in effective period and request 
for comments.

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SUMMARY: The Coast Guard is amending the temporary regulated navigation 
area (RNA) from the entrance of East Rockaway Inlet to the Atlantic 
Beach Bridge, Nassau County, New York, and is extending its effective 
period. 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 5 feet carrying petroleum products as cargo grounding in 
the channel, and the potential for a significant oil spill. This rule 
will continue to restrict passage of commercial vessels carrying 
petroleum products with a loaded draft in excess of 5 feet.

DATES: The amendment to Sec.  165.T01-106 in this rule is effective May 
31, 2006. Section 165.T01-106, added at 70 FR 74676, December 16, 2005, 
effective from 6 a.m., November 29, 2005, to 11:59 p.m., May 31, 2006, 
as amended in this rule, is extended in effect until December 1, 2006. 
Comments and related material must reach the Coast Guard on or before 
July 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 Junior Grade D. Miller, 
Waterways Management Division, Coast Guard Sector Long Island Sound at 
(203) 468-4596.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On December 16, 2005, we published a temporary final rule (TFR) 
entitled ``Regulated Navigation Area; East Rockaway Inlet to Atlantic 
Beach Bridge, Nassau County, Long Island, NY'' in the Federal Register 
(70 FR 74676). The effective period for that rule is from 6 a.m., 
November 29, 2005, to 11:59 a.m., May 31, 2006.
    We did not publish a notice of proposed rulemaking (NPRM) for this 
TFR that would revise and extend the effective period of the existing 
RNA regulation, 33 CFR 165.T01-106. Under 5 U.S.C. 553(b)(B), the Coast 
Guard finds that good cause exists for not publishing an NPRM. This TFR 
is urgently needed to protect the maritime public from shoaling hazards 
in East Rockaway Inlet. Specifically, action is needed to prevent 
vessels carrying petroleum products as cargo with a loaded draft of 
greater than 5 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

[[Page 31086]]

reduced depths to a point where transit for vessels drawing greater 
than 5 feet increases the immediate risk of grounding. Therefore, the 
Coast Guard has relocated the channel buoys to the west to account for 
channel migration. While these aids now mark the deepest water in the 
channel, this channel has experienced rapid shoaling in the past, and 
is expected to experience the same in the future. The potential for 
significant shoaling continues to present a danger to the maritime 
public and thus appropriate regulatory measures are needed to continue 
to protect the maritime public from those hazards in East Rockaway 
Inlet. Accordingly, the Coast Guard anticipates that permanent 
regulations will be needed to protect the maritime users from the risk 
of grounding as well as the general public from the grounding hazards 
and resultant potential consequences of discharging petroleum into the 
navigable channel and surrounding area.
    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. The measures contemplated by this 
rule were designed to prevent vessels carrying petroleum products as 
cargo with a loaded draft of greater than 5 feet from transiting the 
area so as to avoid the potential hazards associated with a grounding 
of a vessel and potential resultant discharge of petroleum products. 
The delay inherent in the NPRM process for developing a permanent rule 
is contrary to the public interest insofar as it may render vessels at 
risk for grounding in the interim. The Coast Guard anticipates that it 
will publish an NPRM to establish a permanent regulated navigation area 
addressing the passage of commercial vessels carrying petroleum 
products with a loaded draft in excess of 5 feet through East Rockaway 
Inlet.
    Specifically, the extension of the effective period of the 
temporary final rule will allow sufficient time for the public to 
participate in the permanent rulemaking process. As described herein, 
the temporary final rule currently in effect is revised and its 
effective date is extended. This extension period will allow for the 
continued protection of the maritime public from the particular 
grounding hazards that continue to affect the Rockaway Inlet while a 
permanent rule is developed.
    Although we have good cause to publish this rule without prior 
notice and comment, we value public comments. As a result, we are 
soliciting your comments on this temporary rule and may revise the 
temporary rule in response to public comments.

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 area 
designated by the Army Corps of Engineers as 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 were 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 5 feet increases the risk of immediate grounding, 
and the potential for a significant oil spill resulting from a 
grounding. Similar shoaling led to the groundings in late 2003 and in 
2004 of small coastal tankers carrying home heating oil.
    The Coast Guard is extending the effective date of this rule until 
December 1, 2006, to allow the establishment of a permanent regulated 
navigation area by notice and comment rulemaking. Continuing the 
requirements in temporary Sec.  165.T01-106, as amended herein, will 
allow us to ensure the public has sufficient time to participate in the 
rulemaking process while we also fulfill our maritime safety duties.

Discussion of Rule

    This rule will continue to provide for the safety of vessel traffic 
and the maritime public in and around East Rockaway Inlet, Long Island, 
New York. This TFR extends the effective period of 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[min]56[sec] N, 073[deg]45[min]19[sec] W, running north to a 
point of land on the northwest side of the inlet at position 
40[deg]35[min]28[sec] N, 073[deg]46[min]12[sec] 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 temporary Sec.  165.T01-106 that this TFR is extending 
prohibits the transit of vessels carrying petroleum products as cargo, 
with a loaded draft greater than 5 feet, through the RNA. Paragraph (b) 
of Sec.  165.T01-106 has been revised to list the factors the COTP will 
consider when considering requests to enter or transit the RNA: 
environmental and safety factors, including, but not limited to: 
weather conditions affecting transit (e.g., sea state, state of the 
tide, winds, and visibility,) the loaded draft of the particular vessel 
seeking to transit the area, and the minimum under keel clearance of 
the particular vessel. Operators of vessels carrying petroleum products 
as cargo with a loaded draft greater than 5 feet may submit a request 
to transit the regulated navigation area.
    The Coast Guard is extending the effective period of the amended 
temporary Sec.  165.T01-106 until December 1, 2006, allowing sufficient 
time for public participation and comment during this rulemaking 
process in anticipation of the development of a permanent rule. The RNA 
in temporary Sec.  165.T01-106 will remain in effect until December 1, 
2006. We have not revised paragraph (a), which defines the location of 
the RNA, but we are republishing it in this rule so readers can see the 
entire regulatory text in this document.
    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.
    In addition to publishing this TFR in the Federal Register, 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

[[Page 31087]]

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 regulated navigation 
area limits only vessels carrying petroleum products as cargo with a 
loaded draft of greater than 5 feet; operators of vessels with a loaded 
draft of greater than 5 feet may request permission to transit the 
regulated navigation area from the Captain of the Port, Long Island 
Sound. Recreational and other maritime traffic not covered by this rule 
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; 
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 both 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 Junior Grade D. Miller, Waterways Management Division, Coast 
Guard Sector Long Island Sound, at (203) 468-4596.
    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.

[[Page 31088]]

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

    We have analyzed this rule under Commandant Instruction M16475.1D 
and Department of Homeland Security Management Directive 5100.1, which 
guide 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 2.B.2 of the Instruction. Therefore, this 
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction, from further environmental documentation. This rule 
fits the category selected from paragraph (34)(g), as it would change a 
regulated navigation area. A final ``Environmental Analysis Check 
List'' and a final ``Categorical Exclusion Determination'' will be 
available in the docket where indicated under ADDRESSES. Comments on 
this section will be considered before we make the final decision on 
whether this rule should be categorically excluded from further 
environmental review.

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. 1225, 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. Amend temporary Sec.  165.T01-106, by revising paragraphs (b) and 
(c), and republish paragraph (a), 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[min]56[sec] N, 
073[deg]45[min]19[sec] W, running north to a point of land on the 
northwest side of the inlet at position 40[deg]35[min]28[sec] N, 
073[deg]46[min]12[sec] 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 5 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 5 feet must request to transit the 
regulated navigation area to the Captain of the Port, Long Island Sound 
(COTP). Factors the COTP will consider before granting permission to 
enter or transit the RNA described in paragraph (a) of this section 
are: Environmental and safety factors, including, but not limited to: 
Weather conditions affecting transit (e.g., sea state, state of the 
tide, winds, and visibility), the loaded draft of the particular vessel 
seeking to transit the area, and the minimum under keel clearance of 
the particular vessel.
    (c) Effective period. This section is effective from 6 a.m. on 
November 29, 2005 until December 1, 2006.

    Dated: May 23, 2006.
Mark J. Campbell,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard 
District.
[FR Doc. 06-5032 Filed 5-26-06; 3:49 pm]
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