[Federal Register Volume 75, Number 37 (Thursday, February 25, 2010)]
[Rules and Regulations]
[Pages 8486-8489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3471]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0009]
RIN 1625-AA11


Regulated Navigation Area; Hudson River south of the Troy Locks, 
New York

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary regulated 
navigation area on the navigable waters of the Hudson River south of 
the Troy Locks. This regulated navigation area is necessary to promote 
maritime safety, and protect mariners and the environment from the 
hazards associated with ice conditions. The regulated navigation area 
is intended to restrict vessels with less than 3000 horsepower while 
engaged in towing operations, from operating on the navigable waters of 
the Hudson River south of the Troy locks when ice conditions are 8 
inches or greater unless authorized by the Captain of the Port New York 
or a designated representative.

DATES: Effective Date: this rule is effective in the CFR on February 
25, 2010 until March 31, 2010. This rule is effective with actual 
notice for purposes of enforcement on February 5, 2010.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-0009 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-0009 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the 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, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Lieutenant William George, Coast Guard 
Sector New York, Waterways Management Division; telephone 718-354-4114, 
e-mail [email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM)

[[Page 8487]]

with respect to this rule because publishing an NPRM and delaying its 
effective date would be contrary to public interest, since immediate 
action is needed to protect mariners and to ensure the safety of the 
environment against potential hazards associated with ice build-up on 
the navigable waters of the Hudson River.
    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. Immediate implementation of this 
rule promotes the public interest by ensuring the safety of mariners 
and protecting the environment against the dangers associated with 
vessel traffic when there are hazardous ice conditions on the navigable 
waters of the Hudson River.

Background and Purpose

    Historically ice has been an impediment to navigation on the 
navigable waters of the Hudson River south of the Troy Locks. West 
Point, Storm King Mountain, Danskammer Point, Crum Elbow, and Esopus 
Meadows are all natural choke points on the Hudson River where ice 
buildups have the potential to severely restrict vessel traffic.
    There are several situations faced by vessels during severe winter 
conditions that can place the vessels, passengers, and crew in great 
danger including being beset in the ice, and ice accretion, where ice 
forms on the superstructure and decks of transiting vessels. Also, ice 
may also cause significant damage to propellers, rudders, and hull 
plating.
    Vessels with less than 3000 horsepower, while engaged in towing 
operations, have significant difficulty transiting the Hudson River in 
locations where ice thickness is eight inches or greater. This 
difficulty in transiting the Hudson River during ice buildup poses a 
safety threat to the environment and a potential hazard to navigation.
    When ice thickness is reported to be eight inches or greater on the 
Hudson River, vessels engaged in towing operations with less than 3000 
horsepower usually request break-out assistance from the Coast Guard. A 
vessel's inability to independently transit the waterway may become a 
hazard to navigation and the environment.
    The formation of ice on the Hudson River contains many variables 
and is not consistent from year to year. During a moderate or severe 
winter, the frozen waterways may impede a vessel's ability to maneuver. 
Once ice build-up begins it can affect the transit of vessels on the 
navigable waterways. In addition a vessel's watertight integrity may 
also be compromised by ice abrasion and ice pressure on the vessel's 
hull.
    Ice floes on the navigable waterways may also cause visual aids to 
navigation to become submerged, destroyed, or moved off station. Ice 
conditions on the navigable waterways may create hazardous conditions 
in which the operations of certain vessels become unsafe.
    It becomes necessary to impose operating restrictions to ensure the 
safe navigation of vessels. This Regulated Navigation Area (RNA) allows 
the Coast Guard to restrict and manage vessel movement when hazardous 
ice conditions exist within a specified area of the Hudson River.
    The Coast Guard is establishing a regulated navigation area on the 
navigable waters of the Hudson River south of the Troy Locks. The 
regulated navigation area is intended to restrict vessels with less 
than 3000 horsepower while engaged in towing operations when ice 
conditions are 8 inches or greater, from operating on the Hudson River 
south of the Troy Locks unless authorized by the Captain of the Port 
New York or a designated representative.

Discussion of Rule

    This rule establishes a regulated navigation area encompassing all 
navigable waters of the Hudson River south of the Troy Locks. Vessels 
with less than 3000 horsepower while engaged in towing operations are 
not authorized to transit the Hudson River south of the Troy Locks when 
ice thickness is greater than eight inches.
    The COTP New York will notify the maritime community, of the 
location and thickness of the ice as well as any restrictions via 
marine broadcast.

Regulatory Analyses

    We developed this 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 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.
    The Coast Guard's implementation of this temporary regulated 
navigational area will only be enforced at the location on the 
navigable waters of the Hudson River south of the Troy Locks where ice 
conditions are 8 inches or greater, and only restrict vessels that are 
less than 3,000 horsepower while engaged in towing operations.
    Before the effective period, the Coast Guard will issue maritime 
advisories widely available to users of the navigable waters of the 
Hudson River. Furthermore, vessels affected by this restriction may be 
authorized to transit the zone with permission of the Captain of the 
Port New York.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this 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 rule will 
not have a significant economic impact on a substantial number of small 
entities.
    This rule will affect the following entities, some of which may be 
small entities: The owners and operators of tug vessels with less than 
3000 horsepower while engaged in towing operations and are intending to 
transit an area of the Hudson River that has a specified ice condition 
of eight inches or greater.
    This regulated navigation area will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: The ice conditions remain very dynamic for the duration of the 
winter due to the ebb and flood of the current and varying wind 
directions. Ice is driven by wind and current and can change location 
on an hourly basis. This rule will only be enforced in the location 
where the reported ice thickness is eight inches or greater and for the 
amount of time the specified ice condition is deemed a threat to safe 
navigation.
    The regulated navigation area will apply to the navigable waters of 
the Hudson River south of the Troy Locks only during the Ice Season 
which ends on March 31st. Vessels that are restricted from operating in 
an affected area due to the thickness of the ice will be allowed to 
transit despite the restriction with the permission of the COTP New 
York.
    Before any restriction is in place, Coast Guard Sector New York 
will issue maritime advisories widely available to

[[Page 8488]]

users of the navigable waters of the Hudson River.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

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 (adjusted for 
inflation) 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 does not create 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 does 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 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 rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this 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 concluded 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction. This rule involves the establishment of a regulated 
navigation area. An environmental analysis checklist and a categorical 
exclusion determination will be available in the docket.

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. 1226, 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. Add temporary Sec.  165.T01-0009 to read as follows:


Sec.  165.T01-009  Regulated Navigation Area, Hudson River south of the 
Troy Locks, New York.

    (a) Regulated navigation area. All navigable waters of the Hudson 
River south of the Troy Locks.
    (b) Definitions. The following definitions apply to this section:
    (1) Designated representative means any Coast Guard commissioned, 
warrant, or petty officer, or a Federal, State, or local law 
enforcement officer designated by or assisting the Captain of the Port 
New York.
    (c) Applicability. This section applies to tugs with less than 
3,000 horsepower when engaged in towing operations.
    (d) Regulations. (1) Except as provided in paragraph (c) (3) of 
this

[[Page 8489]]

section, vessels less than 3,000 horsepower while engaged in towing 
operations are not authorized to transit that portion of the Hudson 
River south of the Troy Locks when ice thickness reaches eight inches 
or greater.
    (2) All Coast Guard assets enforcing this regulated navigation area 
can be contacted on VHF marine band radio, channel 13 or 16. The 
captain of the Port can be contacted at telephone number (718) 354-
4356.
    (3) All persons desiring to transit through a portion of the 
regulated area that has operating restriction in effect must contact 
the COTP at telephone number (718) 354-4356 or on VHF channel 13 or 16 
to seek permission prior to transiting the affected regulated area.
    (5) The COTP will notify the public of any changes in the status of 
this regulated navigation area by Marine Safety Information Broadcast 
on VHF-FM marine band radio, channel 22A (157.1 MHZ).

    Dated: February 5, 2010.
Joseph L. Nimmich,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2010-3471 Filed 2-24-10; 8:45 am]
BILLING CODE 9110-04-P