[Federal Register Volume 74, Number 180 (Friday, September 18, 2009)]
[Proposed Rules]
[Pages 47906-47910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22457]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket No. USCG 2008-1082]
RIN 1625-AA01


Anchorage Regulations; Port of New York

AGENCY: Coast Guard, DHS.

[[Page 47907]]


ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to amend Anchorage Ground No. 19 
located east of the Weehawken-Edgewater Federal Channel on the Hudson 
River. This action is necessary to facilitate safe navigation and 
provide safe and secure anchorages for vessels operating in the area. 
This proposal is intended to increase the safety of life and property 
of both the anchored vessels and those operating in the area as well as 
to provide for the overall safe and efficient flow of commerce.

DATES: Comments and related material must be received by the Coast 
Guard on or before November 17, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-1082 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 Mr. Jeff Yunker, Coast Guard Sector New York, 
Waterways Management Division; 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-2008-1082), 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 delivery, 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 and 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop-down menu select 
``Proposed Rule'' and insert ``USCG-2008-1082'' in the ``Keyword'' box. 
Click ``Search'' 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 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 and 
click on the ``Read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2008-1082'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' 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

    The Hudson River Pilots Association, through the Port of New York/
New Jersey Harbor Safety, Navigation and Operations Committee, has 
requested that the Coast Guard revise the boundaries of Anchorage 
Ground No. 19 which is located on the Hudson River, east of the 
Weehawken-Edgewater Federal Channel and south of the George Washington 
Bridge.
    Due to severe recurring shoaling within the Weehawken-Edgewater 
Federal Channel, the Hudson River Pilots requested and received 
authorization from the Coast Guard and Army Corps of Engineers to pilot 
vessels through the deeper and safer water located east of the 
Weehawken-Edgewater Federal Channel which is within the current 
boundaries of Anchorage Ground No. 19.
    This proposed revision would divide Anchorage Ground 19 into two 
separate Anchorage Areas; Anchorage Ground No. 19 West and Anchorage 
Ground No. 19 East. This proposed change will allow deep draft vessels 
to transit the deeper water without having to transit through the 
current boundaries of Anchorage Ground 19. The U.S. Army Corps of 
Engineers, in conjunction with this rulemaking, intends to relocate the 
Weehawken-Edgewater Federal Channel to the East of its current 
location. Under this proposed rule, The Weehawken-Edgewater Federal 
Channel would be located between the proposed Anchorage Ground No. 19 
West and Anchorage Ground No. 19 East. Due to shoaling, the March 2007 
(ACOE)

[[Page 47908]]

survey verified a controlling depth of 27 feet in the Right Outside 
Quarter of the Weehawken-Edgewater Channel where vessels bound for 
ports north of New York City would have to transit. As published by the 
U.S. Army Corps of Engineers (ACOE) Institute for Water Resources, 
vessels with drafts of up to 34 feet transit the Hudson River. In 
calendar year 2006, there were 6,562 transits on the Hudson River 
between the mouth of the Harlem River and Waterford, NY by vessels with 
a draft of 27 feet or greater. Vessels with a draft of 27 feet or 
greater would be required to transit through the new channel which is 
within the current boundaries of Anchorage Ground No. 19.
    Tug & Barge traffic within the harbor has increased 37% since 1991. 
Anchorage Ground No. 19 is the closest Anchorage Ground to use when 
there is no space for temporary anchoring within the Upper New York Bay 
Anchorage Grounds. Hence, these vessels transit to Anchorage Ground No. 
19 to await a berth, or orders, to minimize fuel consumption and 
provide an orderly flow of commerce within the harbor and the New 
England region.
    On October 14, 2008 the Captain of the Port (COTP) issued an 
Advisory Notice to all Tug & Barge operators and the Hudson River 
Pilots. The COTP notified the maritime community that in accordance 
with 33 CFR 110.155(c)(5)(i) he would only grant permission for vessels 
to anchor on the western boundary of the existing Anchorage Ground No. 
19 as an interim measure to facilitate vessel transits through the area 
while alternatives are explored.
    This proposed rule would modify Anchorage Ground No. 19 and remove 
the need for vessels to transit through the anchorage when the Army 
Corps relocates Weehawken-Edgewater Federal Channel to the Eastern 
portion of the Hudson River. This proposed rule will eliminate the 
unsafe transit conditions of deep draft vessels transiting through the 
current Anchorage Ground No. 19.

Discussion of Proposed Rule

    In this rule we propose to divide the current Anchorage Ground No. 
19 into two Anchorage Grounds. Anchorage No. 19 East would be bounded 
by the following points: 40[deg]49'42.6'' N, 073[deg]57'14.7'' W; 
thence to 40[deg]49'45.9'' N, 073[deg]57'22.0'' W; thence to 
40[deg]49'52.0'' N, 073[deg]57'22.0'' W; thence to 40[deg]50'08.3'' N, 
073[deg]57'10.8'' W; thence to 40[deg]50'55.4'' N, 073[deg]56'59.7'' W; 
thence to 40[deg]51'02.5'' N, 073[deg]56'57.4'' W; thence to 
40[deg]51'00.8'' N, 073[deg]56'49.4''W; thence along the shoreline to 
the point of origin (NAD 83). Anchorage No. 19 West would be bounded by 
the following points: 40[deg]46'56.3'' N, 073[deg]59'42.2'' W; thence 
to 40[deg]47'36.9'' N, 073[deg]59'11.7'' W; thence to 40[deg]49'31.3'' 
N, 073[deg]57'43.8'' W; thence to 40[deg]49'40.2'' N, 073[deg]57'37.6'' 
W; thence to 40[deg]49'52.4'' N, 073[deg]57'37.6'' W; thence to 
40[deg]49'57.7'' N, 073[deg]57'47.3'' W; thence to 40[deg]49'32.2'' N, 
073[deg]58'12.9'' W; thence to 40[deg]49'00.7'' N, 073[deg]58'33.1'' W; 
thence to 40[deg]48'28.7'' N, 073[deg]58'53.8'' W; thence to 
40[deg]47'38.2'' N, 073[deg]59'31.2'' W; thence to 40[deg]47'02.7'' N, 
073[deg]59'57.4'' W; thence to the point of origin (NAD 83).
    The current Anchorage Ground No. 19 covers 1,352 acres. The 
proposed Anchorage Ground No. 19 West would cover 714.5 acres while the 
proposed Anchorage Ground No. 19 East would cover 185.5 acres. There 
would be 400 yards separating the two Anchorage Grounds for vessel 
transits.
    We propose to revise the regulations specific to these two 
anchorage grounds and change the current numbering within this section. 
The new regulations applicable to Anchorage 19 East and West will 
appear in 33 CFR 110.155(c)(5)(iii)(A)-(E). The proposed changes to the 
anchorage regulations are detailed below.
    We propose to discontinue the requirement (currently at 33 CFR 
110.155(c)(5)(i)) that all vessels obtain permission from the Captain 
of the Port prior to anchoring. The Captain of the Port is currently 
not authorizing any vessels to anchor within the proposed revised 
Federal Channel. If the proposed rule is finalized, then the Coast 
Guard would no longer require this regulation to stop vessels from 
anchoring within the deep water being used for vessel transits. Vessels 
may still be required to shift their position into, or within, the 
anchorage under the authority of 33 CFR 110.155(l)(12).
    We propose to discontinue the requirement (currently at 33 CFR 
110.155(c)(5)(ii)) that each vessel report its position to the Captain 
of the Port immediately after anchoring. This provision is no longer 
required due to vessels already reporting their position via their 
Automated Identification System (AIS) equipment and/or radar returns 
from the vessels received by the Coast Guard and Vessel Traffic Service 
(VTS).
    We propose to revise the regulation (currently at 33 CFR 
110.155(c)(5)(iii)) that currently provides that no vessel may conduct 
lightering operations in these anchorage grounds without permission 
from the Captain of the Port. The revision will clarify that when 
lightering is requested, the Captain of the Port must be notified at 
least four hours in advance of a vessel conducting lightering 
operations as required by Sec.  156.118 of this title.
    We propose to discontinue the requirement (currently at 33 CFR 
110.155(c)(5)(iv)) that each vessel move when the Captain of the Port 
notifies them the Anchorage is required by naval vessels. This 
regulation is no longer required as the closest naval facility is now 
located approximately 22 nautical miles away at Earle, NJ. A copy of 
this notice of proposed rulemaking will be provided to the Navy seeking 
comment regarding the disestablishment of the Naval Anchorages in this 
area and whether they intend to anchor vessels on this part of the 
Hudson River at a future time. Additionally, vessels may still be 
required to shift their position into, or within, the anchorage under 
current Captain of the Port authority as provided for in 33 CFR 
110.155(l)(12).
    We propose to revise the regulation (currently at 33 CFR 
110.155(c)(5)(v)) requiring 48 hours advance notice to the Captain of 
the Port from vessels over 800 feet in length overall, or 40 feet in 
draft, requesting to use the anchorage. As discussed below, we propose 
to limit this anchorage ground to tugs and/or barges. Ships will not be 
authorized to anchor in these proposed anchorage grounds as they are 
already anchoring outside of the Federal Channel, off Yonkers, NY, 
approximately 5 to 10 nautical miles north of these proposed revised 
anchorage grounds.
    We propose to add a requirement that any vessel conducting 
lightering or bunkering operations shall display by day a red flag (Pub 
102; International Code of Signals; signaling instructions) at its mast 
head or at least 10 feet above the upper deck if the vessel has no 
mast, and by night the flag must be illuminated by spotlight. These 
signals shall be in addition to day signals, lights and whistle signals 
as required by rules 30 (33 U.S.C. 2030) and 35 (33 U.S.C. 2035) of the 
Inland Navigation Rules when at anchor in a general anchorage area.
    We propose to add a requirement that within an anchorage, fishing 
and navigation are prohibited within 500 yards of an anchored vessel 
displaying a red flag by day or a red light by night.
    We propose to add a regulation (the proposed 33 CFR 
110.155(c)(5)(iii)(D)) to specify that these anchorage grounds are only 
authorized for use by tugs and/or barges.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses

[[Page 47909]]

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. This 
conclusion is based upon the fact that there are no fees, permits, or 
specialized requirements for the maritime industry to utilize these 
anchorage areas. The regulation is solely for the purpose of advancing 
safety of maritime commerce.

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 vessels intending to transit through the proposed 
Anchorage Grounds 19 East and 19 West. Vessels intending to anchor in 
the current Anchorage Ground No. 19 would still be able to anchor in 
the revised Anchorage Ground No. 19 East or No. 19 West.
    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 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 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

[[Page 47910]]

actions which do not individually or cumulatively have a significant 
effect on the human environment. This rule involves changing the size 
of anchorage grounds resulting in a reduction in the overall size of 
the 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.  110.155, by revising paragraph (c)(5) to read as 
follows:


Sec.  110.155  Port of New York.

* * * * *
    (c) * * *
    (5) Anchorages No. 19 East and 19 West.
    (i) Anchorage No. 19 East. All waters of the Hudson River bound by 
the following points: 40[deg]49[min]42.6[sec] N, 
073[deg]57[min]14.7[sec] W; thence to 40[deg]49[min]45.9[sec] N, 
073[deg]57[min]22.0[sec] W; thence to 40[deg]49[min]52.0[sec] N, 
073[deg]57[min]22.0[sec] W; thence to 40[deg]50[min]08.3[sec] N, 
073[deg]57[min]10.8[sec] W; thence to 40[deg]50[min]55.4[sec] N, 
073[deg]56[min]59.7[sec] W; thence to 40[deg]51[min]02.5[sec] N, 
073[deg]56[min]57.4[sec] W; thence to 40[deg]51[min]00.8[sec] N, 
073[deg]56[min]49.4[sec] W; thence along the shoreline to the point of 
origin (NAD 83).
    (ii) Anchorage No. 19 West. All waters of the Hudson River bound by 
the following points: 40[deg]46[min]56.3[sec] N, 
073[deg]59[min]42.2[sec] W; thence to 40[deg]47[min]36.9[sec] N, 
073[deg]59[min]11.7[sec] W; thence to 40[deg]49[min]31.3[sec] N, 
073[deg]57[min]43.8[sec] W; thence to 40[deg]49[min]40.2[sec] N, 
073[deg]57[min]37.6[sec] W; thence to 40[deg]49[min]52.4[sec] N, 
073[deg]57[min]37.6[sec] W; thence to 40[deg]49[min]57.7[sec] N, 
073[deg]57[min]47.3[sec] W; thence to 40[deg]49[min]32.2[sec] N, 
073[deg]58[min]12.9[sec] W; thence to 40[deg]49[min]00.7[sec] N, 
073[deg]58[min]33.1[sec] W; thence to 40[deg]48[min]28.7[sec] N, 
073[deg]58[min]53.8[sec] W; thence to 40[deg]47[min]38.2[sec] N, 
073[deg]59[min]31.2[sec] W; thence to 40[deg]47[min]02.7[sec] N, 
073[deg]59[min]57.4[sec] W; thence to the point of origin.
    (iii) The following regulations apply to 33 CFR 110.155(c)(5)(i) 
and (ii):
    (A) No vessel may conduct lightering operations in these anchorage 
grounds without permission from the Captain of the Port. When 
lightering is authorized, the Captain of the Port New York must be 
notified at least four hours in advance of a vessel conducting 
lightering operations as required by Sec.  156.118 of this title.
    (B) Any vessel conducting lightering or bunkering operations shall 
display by day a red flag (Pub 102; International Code of Signals; 
signaling instructions) at its mast head or at least 10 feet above the 
upper deck if the vessel has no mast, and by night the flag must be 
illuminated by spotlight. These signals shall be in addition to day 
signals, lights and whistle signals as required by rules 30 (33 U.S.C. 
2030) and 35 (33 U.S.C. 2035) of the Inland Navigation Rules when at 
anchor in a general anchorage area.
    (C) Within an anchorage, fishing and navigation are prohibited 
within 500 yards of an anchored vessel displaying a red flag by day or 
a red light by night.
    (D) These anchorage grounds are only authorized for use by tugs 
and/or barges.
    (E) No vessel may occupy this anchorage ground for a period of time 
in excess of 96 hours without prior approval of the Captain of the 
Port.
    (F) All coordinates referenced use datum: NAD 83.
* * * * *

    Dated: July 23, 2009.
Dale G. Gabel,
Rear Admiral, U.S. Coast Guard Commander, First Coast Guard District.
[FR Doc. E9-22457 Filed 9-17-09; 8:45 am]
BILLING CODE 4910-15-P