[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Proposed Rules]
[Pages 28199-28202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13889]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / 
Proposed Rules  

[[Page 28199]]



DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0085]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Coast Guard proposes to establish a regulated navigation 
area extending from the entrance of East Rockaway Inlet to the Atlantic 
Beach Bridge, Nassau County, New York. This regulated navigation area 
will affect commercial vessels carrying petroleum products in excess of 
250 barrels by requiring them to plan all transits of the regulated 
navigation area so that they maintain a minimum of two feet under keel 
clearance at all times. Additionally, they may not transit the 
regulated navigation area if a small craft advisory, or more severe 
weather warning, has been issued, unless authorized by the Captain of 
the Port Long Island Sound. This action is necessary because 
significant shoaling in this area has reduced the depths of the 
navigable channel and has increased the risk of vessels grounding in 
the channel and the potential for a significant oil spill.

DATES: Comments and related material must be received by the Coast 
Guard on or before August 14, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-0085 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 four 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 Lieutenant Commander Kristen Schroeder, Prevention 
Department, CG Sector Long Island Sound at 203-468-4459 or 
[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-2008-0085), 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 http://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-2008-0085'' 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\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments 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 proposed 
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-2008-0085 in the Docket ID box, press 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

[[Page 28200]]

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

    East Rockaway Inlet is on the South Shore of Long Island, in Nassau 
County. Water depths in the federal navigation channel change 
constantly and have been reduced in some areas to as low as five feet 
at times. This channel was last dredged by the Army Corps of Engineers 
during the winter of 2008-2009 and is on a 2 year cycle for dredge 
work. The channel buoys require regular relocation to mark best water 
as the channel shoals in between dredge cycles. 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, and Keyspan E.F. Barrett, an electrical power generation 
facility, located in Island Park, Long Island, New York. For vessels 
carrying 250 or more barrels of petroleum, approximately 60 transits of 
the area occur each year. The shoaling in this area has reduced depths 
to a point where there is an increased risk of vessels grounding and 
the potential for a significant oil spill. Similar shoaling led to the 
grounding in late 2003 of a small coastal tanker carrying home heating 
oil.
    This proposed rule will provide for the safety of vessel traffic 
and protection of the maritime environment in and around East Rockaway 
Inlet, Long Island, New York.

Discussion of Proposed Rule

    This proposed rule establishes a regulated navigation area (RNA) on 
the navigable waters of the East Rockaway Inlet in an area bounded by 
lines drawn from position 40[deg]34'56'' N, 073[deg]45'19'' W, 
[approximate position of Silver Point breakwater buoy (LLNR 31500)] 
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 point of origin. The rule described herein restricts the 
transit of vessels carrying petroleum products in excess of 250 barrels 
such that they must plan all transits of the RNA to maintain at least 
two feet under keel clearance at all times. Additionally, such vessels 
are prohibited from transiting the RNA during periods when a small 
craft advisory, or more severe weather warning, has been issued, unless 
authorized by the Captain of the Port Long Island Sound. In addition, 
operators of vessels carrying petroleum products in excess of 250 
barrels as cargo that require a nighttime transit through East Rockaway 
Inlet may do so only after receiving approval from the Captain of the 
Port Long Island Sound. The operator's voyage plan must contain 
parameters for transit of the RNA that are acceptable to the Captain of 
the Port Long Island Sound. Parameters addressed shall include: 
Forecasted weather conditions for the duration of the transit, 
restrictions due to state of tide, the loaded draft of the vessel, and 
minimum under keel clearance.
    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 RNA publication in the Federal 
Register, broadcast notifications and notifications in the local notice 
to mariners.

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 proposed rule to be so minimal that a full Regulatory 
Evaluation is unnecessary.
    The regulated navigation area limits only vessels carrying 
petroleum products as cargo and allows vessels with sufficient under 
keel clearance to transit during good weather and daylight hours 
without having to gain prior approval from the Captain of the Port Long 
Island Sound. Otherwise, a vessel may request and receive approval from 
the Captain of the Port Long Island Sound, to transit at other times. 
Recreational and other maritime traffic is not otherwise restricted or 
prohibited from transiting this area.

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.
    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.
    Therefore, 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.
    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 Lieutenant Commander Kristen 
Schroeder, Prevention Department, CG Sector Long Island Sound at (203) 
468-4459. 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.

[[Page 28201]]

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 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 023-01 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 do not individually or cumulatively have a 
significant effect on the human environment. Therefore, this rule is 
categorically excluded, under section 2.B.2. Figure 2-1, paragraph 
34(g), of the instruction and neither an environmental assessment nor 
an environmental impact statement is required. This rule involves the 
establishing, disestablishing, or changing regulated navigation areas 
and security or safety zones. A preliminary ``Environmental Analysis 
Checklist'' supporting this determination is available in the docket 
where indicated under the ``Public Participation and Request for 
Comments'' section of this preamble. 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 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

    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, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. Add Sec.  165.156 to read as follows:


Sec.  165.156  Regulated Navigation Area, East Rockaway Inlet to 
Atlantic Beach Bridge, Nassau County, Long Island, New York.

    (a) Location. The following area is a Regulated Navigation Area: 
All waters of East Rockaway Inlet in an area bounded by lines drawn 
from position 40[deg]34[min]56[sec] N, 073[deg]45[min]19[sec] W, 
[approximate position of Silver Point breakwater buoy (LLNR 31500)] 
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) The general regulations contained in 33 CFR 
Sec.  165.10, Sec.  165.11, and Sec.  165.13 apply.
    (2) In accordance with the general regulations, the following 
regulations apply to vessels carrying petroleum products in excess of 
250 barrels:
    (i) The vessel must have plans in place to maintain a minimum of 
two feet under keel clearance at all times.
    (ii) A vessel requiring a nighttime transit through East Rockaway 
Inlet may only do so only after receiving approval from the Captain of 
the Port Long Island Sound.
    (iii) Vessels are prohibited from transiting East Rockaway Inlet if 
a small

[[Page 28202]]

craft advisory or greater has been issued for the area unless specific 
approval is received from the Captain of the Port Long Island Sound.
    (iv) In an emergency, any vessel may deviate from the regulations 
in this section to the extent necessary to avoid endangering the safety 
of persons, property, or the environment. If deviation from the 
regulations is necessary, the master or their designee shall inform the 
Coast Guard as soon as it is practicable to do so.
    (c) Waivers. (1) The Captain of the Port Long Island Sound may, 
upon request, waive any regulation in this section. (2) A request for a 
waiver must include the need for the waiver and describe the proposed 
vessel operations through the Regulated Navigation Area.

    Dated: May 27, 2009.
Dale G. Gabel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-13889 Filed 6-12-09; 8:45 am]
BILLING CODE 4910-15-P