[Federal Register Volume 74, Number 62 (Thursday, April 2, 2009)]
[Proposed Rules]
[Pages 14938-14941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7357]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket No. USCG-2008-0047]
RIN 1625-AA01


Anchorage Regulations; Port of New York and Vicinity

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: This document supplements the Coast Guard's May 2008 proposal 
to amend the existing special anchorage area at Perth Amboy, New 
Jersey, at the junction of the Raritan River and Arthur Kill. The 
proposed amendment is necessary to facilitate safe navigation and 
provide for a safe and secure anchorage for vessels of not more than 65 
feet in length. This supplemental notice of proposed rulemaking 
provides updated coordinates for the proposed amendment and revises the 
proposed use limitations.

DATES: Comments and related material must be received by the Coast 
Guard on or before May 4, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-0047 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these methods. See the 
``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section below for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail Mr. Jeff Yunker, Waterways Management Coordinator, 
Coast Guard, telephone 718-354-4195, e-mail [email protected]. If 
you have questions on viewing or submitting material to the docket, 
call Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-0047), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (via http://www.regulations.gov) or by fax, mail or hand 
delivery, but please use only one of these means. If you submit a 
comment online via www.regulations.gov, it will be considered received 
by the Coast Guard when you successfully transmit the comment. If you 
fax, hand deliver, or mail your comment, it will be considered as 
having been received by the Coast Guard when it is received at the 
Docket Management Facility. We recommend that you include your name and 
a mailing address, an e-mail address, or a telephone number in the body 
of your document so that we can contact you if we have questions 
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2008-0047'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your comments by mail or hand delivery, submit them in an 
unbound format, no larger than 8[frac12] by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2008-0047 in the Docket ID box, press

[[Page 14939]]

Enter, and then click on the item in the Docket ID column. You may also 
visit the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. We have an agreement 
with the Department of Transportation to use the Docket Management 
Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But, you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting 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

    During times of tidal shifts, vessels moored near the edge of this 
special anchorage area were found swinging out into the Raritan River 
Cutoff and the Raritan River Federal Channels. Since moored vessels in 
a special anchorage area are exempt from the Inland Rules of the Road 
[Rule 30 (33 U.S.C. 2030) and Rule 35 (33 U.S.C. 2035)]; vessels 
swinging out into these Federal Channels create a high risk of 
collision with larger commercial vessels that transit past this special 
anchorage area, especially at night and during times of inclement 
weather. Also, when larger commercial vessels maneuver to avoid a 
collision with recreation vessels that swing out into these channels it 
creates a hazardous, close-quarters passing situation with other larger 
commercial vessels operating within these Federal Channels.
    On May 8, 2008, the Coast Guard published a notice of proposed 
rulemaking (NPRM) titled ``Anchorage Regulations; Port of New York and 
Vicinity'' (Docket number USCG-2008-0047) in the Federal Register (73 
FR 26054). In that NPRM, the Coast Guard proposed to add a ``note'' to 
the regulation. The Coast Guard received two letters commenting on the 
NPRM, and one request for a public meeting.

Discussion of Comments and Changes

    The Coast Guard received two letters commenting on the NPRM, and 
both letters stated that the geographic points appeared to be 
incorrect. The Coast Guard agrees with these comments. It was 
determined that, during the Coast Guard's internal review process prior 
to publication of the NPRM, the incorrect positions from an earlier 
draft were transposed to the final version of the NPRM that was 
published in the Federal Register. The special anchorage area location 
was submitted to the National Oceanographic and Atmospheric 
Administration (NOAA) and they provided the positions so the special 
anchorage area would be displayed adjacent to the Federal Channel on 
navigation charts. The positions proposed in this supplemental NPRM 
were provided by NOAA to correct this issue.
    In addition to correction of the coordinates as discussed above, 
one commenter requested the following three revisions.
    First, the commenter requested that the Coast Guard enlarge the 
special anchorage area one block north to Smith Street as extended to 
give certain city moorings the benefit of a special anchorage. The 
current special anchorage area bisects the Municipal Marina, and the 
commenter's proposed change would cover the waters to the end of the 
Municipal Marina. The Coast Guard agrees because the extension covers 
waters under the jurisdiction of the Perth Amboy Municipal Marina, and 
this supplemental NPRM proposes to extend the northern boundary of the 
special anchorage area to an extension of Smith Street.
    Second, the commenter requested that the Coast Guard require only 
that vessels in the special anchorage area and their attached moorings 
do not impinge on the Shipping Channels, and require no additional 
buffer zone between the recreational vessels and the Federal Channel. 
The Coast Guard agrees. This comment has been incorporated into the 
revised positions provided by NOAA to display the special anchorage 
area adjacent to the Federal Channel, and proposed in this supplemental 
NPRM.
    Third, the commenter requested that the Coast Guard revise the 
proposed ``note'' to provide that mariners contact the Fleet Captain of 
the Raritan Yacht Club at 732-297-7727, 732-826-2277 or on VHF Channel 
9, and only prohibit the use of mooring piles or stakes seaward of the 
pier head line in accordance with the Waterfront Management Plan for 
the Mooring Field at Perth Amboy, NJ as authorized by the New Jersey 
Department of Environmental Protection. The Coast Guard agrees and has 
revised the proposed rule to include these changes. The Coast Guard 
also has removed the designation ``note'' from this proposed text, and 
replaced it with the new paragraph designation (d)(10)(i).
    The commenter who submitted the requests above also requested a 
public meeting ``in the event'' that the requestor's comments were not 
incorporated. Because the Coast Guard agrees with the comments above 
and has incorporated them into this supplemental NPRM for further 
public comment, the Coast Guard believes a public meeting would not aid 
this rulemaking.
    Finally, this supplemental NPRM reflects technical amendments made 
between the publication of the May 2008 NPRM and this supplemental 
NPRM. (See 73 FR 35010.) As a result of these technical amendments, the 
regulation for this special anchorage area is now codified at 33 CFR 
110.60(d)(10), instead of 33 CFR 110.60(aa). Similarly, 33 CFR 110.60 
was titled ``Port of New York and vicinity'' when the May 2008 NPRM 
issued, but now is titled ``Captain of the Port, New York''; to avoid 
confusion the Coast Guard has not changed the title of this 
supplemental NPRM.
    As discussed above, this supplemental NPRM proposes corrected 
coordinates for the special anchorage area. Further, this rulemaking is 
intended to reduce the risk of vessel collisions by adding amplifying 
information regarding the use of the special anchorage area. This would 
be accomplished by adding the following: ``This area is limited to 
vessels no greater than 20 meters in length and is primarily for use by 
recreational craft on a seasonal or transient basis. These regulations 
do not prohibit the placement of moorings within the anchorage area, 
but requests for the placement of moorings should be directed to the 
Raritan Yacht Club Fleet Captain (telephone 732-297-7727, 732-826-2277, 
or VHF Channel 9) to ensure compliance with local and state laws. All 
moorings shall be so placed that no vessel, when anchored, will at any 
time extend beyond the limits of the area. Fixed mooring piles or 
stakes are prohibited seaward of the pier head line. Mariners are 
encouraged to contact the Raritan Yacht Club Fleet Captain for any 
additional ordinances and to ensure compliance with additional 
applicable state and local laws.''

[[Page 14940]]

    This proposed addition will greatly increase navigation safety and 
is necessary due to the boundary of the special anchorage area being 
adjacent to the Raritan River Cutoff and Raritan River Federal 
Channels.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. This finding is based on the 
fact that this rule would require recreational vessels to anchor a 
greater distance from the Raritan River Cutoff and Raritan River 
Federal Channels. As displayed on the government navigation charts, the 
current boundaries of the special anchorage area and adjacent Federal 
Channels nearly overlap. This proposed rule would greatly reduce the 
possibility of marine casualties, pollution incidents, or human 
fatalities that could be caused by these recreational vessels anchoring 
within, or near, the Federal Channels and causing a collision with any 
of the approximately 5,000 commercial vessels that transit the Raritan 
River Cutoff Channel on an annual basis. Vessel transit statistics from 
the ACOE Navigation Data Center are available online at: http://www.iwr.usace.army.mil/ndc/wcsc/wcsc.htm. Additionally, vessels would 
still be able to anchor in an area approximately 850 to 1,050 yards 
wide by 480 to 980 yards long off the southern Perth Amboy shoreline.

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 recreational 
vessels intending to anchor immediately adjacent to Raritan River 
Cutoff and Raritan River Federal Channels, which could cause a marine 
casualty, pollution incident, or human fatality, due to a commercial 
vessel colliding with the anchored or moored recreational vessel(s). It 
would also affect commercial vessels by reducing the possibility that 
they will encounter hazardous, close-quarters passing conditions 
created by recreational vessels within the channels. However, the 
requirements contained within the proposed rule would not have a 
significant economic impact on these entities for the following 
reasons: The revised special anchorage area would require vessels to 
moor, or anchor, at a greater distance from the Raritan River and 
Raritan River Cutoff Federal Channels, reducing the threat of collision 
with vessels transiting the adjacent Federal Channel. This special 
anchorage area was never designed to authorize vessels to anchor, or 
moor, in a manner where they would extend into the Federal Channel 
creating a hazard to navigation. Additionally, vessels would still be 
able to anchor in an area approximately 850 to 1,050 yards wide by 480 
to 980 yards long off the southern Perth Amboy shoreline.
    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 Mr. Jeff Yunker, Waterways 
Management Coordinator, Coast Guard Sector New York, at 718-354-4195. 
The Coast Guard will not retaliate against small entities that question 
or complain about this proposed rule or any policy or action of the 
Coast Guard.

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 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

[[Page 14941]]

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.

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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 0023.1 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is one of a 
category of actions which does not individually or cumulatively have a 
significant effect on the human environment. A preliminary 
environmental analysis checklist supporting this determination is 
available in the docket where indicated under ADDRESSES. This proposed 
rule involves changes to the size of a special anchorage area. We seek 
any comments or information that may lead to the discovery of a 
significant environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 110

    Anchorage grounds.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 110 as follows:

PART 110--ANCHORAGE REGULATIONS

    1. The authority citation for part 110 continues to read as 
follows:

    Authority:  33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 
33 CFR 1.05-1; Department of Homeland Security Delegation No. 
0170.1.
    2. Amend Sec.  110.60, by revising paragraph (d)(10) to read as 
follows:
    Sec.  110.60 Captain of the Port, New York.
* * * * *
    (d) * * *
    (10) Perth Amboy, NJ. All waters bound by the following points: 
40[deg]30'26.00'' N, 074[deg]15'42.00'' W; thence to 40[deg]30'24.29'' 
N, 074[deg]15'35.20'' W; thence to 40[deg]30'02.79'' N, 
074[deg]15'44.16'' W; thence to 40[deg]29'35.70'' N, 074[deg]16'08.88'' 
W; thence to 40[deg]29'31.00'' N, 074[deg]16'20.75'' W; thence to 
40[deg]29'47.26'' N, 074[deg]16'49.82'' W; thence to 40[deg]30'02.00'' 
N, 074[deg]16'41.00'' W, thence along the shoreline to the point of 
origin.
    (i) This area is limited to vessels no greater than 20 meters in 
length and is primarily for use by recreational craft on a seasonal or 
transient basis. These regulations do not prohibit the placement of 
moorings within the anchorage area, but requests for the placement of 
moorings should be directed to the Raritan Yacht Club Fleet Captain 
(telephone 732-297-7727, 732-826-2277 or VHF Channel 9) to ensure 
compliance with local and state laws. All moorings shall be so placed 
that no vessel, when anchored, will at any time extend beyond the 
limits of the area. Fixed mooring piles or stakes are prohibited 
seaward of the pier head line. Mariners are encouraged to contact the 
Raritan Yacht Club Fleet Captain for any additional ordinances or laws 
and to ensure compliance with additional applicable state and local 
laws.
    (ii)[Reserved]
* * * * *

    Dated: February 27, 2009.
Dale G. Gabel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
 [FR Doc. E9-7357 Filed 4-1-09; 8:45 am]
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