[Federal Register Volume 71, Number 237 (Monday, December 11, 2006)]
[Rules and Regulations]
[Pages 71483-71486]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-20921]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-06-142]
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.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is issuing another temporary final rule to 
continue a temporary regulated navigation area (RNA) from the entrance 
of East Rockaway Inlet to the Atlantic Beach Bridge, Nassau County, New 
York. 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: This rule is effective from December 1, 2006, until June 1, 
2007.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD01-06-142 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 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 was November 29, 
2005, to May 31, 2006. That rule was later revised and extended to 
December 1, 2006. (71 FR 31085, June 1, 2006). This temporary final 
rule will continue a temporary regulated navigation area (RNA) in the 
same location until June 1, 2007.
    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. The original TFR was urgently 
needed to protect the maritime public from shoaling hazards in East 
Rockaway Inlet. Specifically, action was 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 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. We anticipate that by June 2007 
we will be able to complete a notice-and-comment rulemaking proposing 
that the RNA be made permanent.
    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 has begun the 
process to 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. The Coast Guard has continued to encounter delays in 
the processing of the NPRM. This temporary final rule will allow for 
the continued protection of the maritime public from the particular 
grounding hazards that continue to affect the Rockaway Inlet while 
permanent rules are developed.
    In the last temporary final rule extending the effective period of 
the RNA, we requested post-promulgation comments. The Coast Guard has 
received no written comments or complaints to suggest any modification 
of the scope of the RNA.

[[Page 71484]]

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. Additional 
time is necessary to ensure the public has sufficient time to 
participate in the rulemaking process. The Coast Guard is continuing a 
temporary RNA in place until June 1, 2007, to allow the establishment 
of a permanent regulated navigation area by notice-and-comment 
rulemaking.

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 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.
    The rule described herein prohibits the transit of vessels carrying 
petroleum products as cargo, with a loaded draft greater than 5 feet, 
through the RNA. Operators of vessels carrying petroleum products as 
cargo with a loaded draft greater than five feet who wish to transit 
the regulated navigation area must request permission from the Captain 
of the Port, Long Island Sound. They should seek permission at least 48 
hours prior to transiting the area to prevent delays and minimize the 
risk of denial of entry.
    As under the current TFR, the COTP will consider the following 
factors 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.
    The Coast Guard is continuing a temporary regulated navigation area 
until June 1, 2007, because we anticipate we will need this much time 
to allow for public participation and comment on a proposed rulemaking 
for a permanent rule. This temporary final rule will be in effect from 
December 1, 2006 until June 1, 2007.
    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 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 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

[[Page 71485]]

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. 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 
establish 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.

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. From December 1, 2006, until June 1, 2007, add temporary Sec.  
165.T01-142 to read as follows:


Sec.  165.T01-142  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 (RNA): 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,

[[Page 71486]]

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). They should seek permission at least 48 hours prior to 
transiting the area to prevent delays and minimize the risk of denial 
of entry. 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 December 1, 
2006, until June 1, 2007.

    Dated: November 27, 2006.
Timothy S. Sullivan,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E6-20921 Filed 12-8-06; 8:45 am]
BILLING CODE 4910-15-P