[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Rules and Regulations]
[Pages 4529-4532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1660]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-1126]
RIN 1625-AA00


Safety Zone; Underwater Hazard, Gravesend Bay, Brooklyn, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
waters of Gravesend Bay, Brooklyn, New York. This rule is necessary to 
provide for the safety of life and property on the navigable waters. 
This rule is intended to restrict unauthorized persons and vessels from 
traveling through or conducting underwater activities within a portion 
of Gravesend Bay until recently discovered military munitions are 
rendered safe and removed from the area.

DATES: This rule is effective from January 26, 2011 until 11:59 p.m. on 
June 30, 2011. This rule has been enforced with actual notice since 
December 18, 2010.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2010-1126 and are available online 
by going to http://www.regulations.gov, inserting USCG-2010-1126 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,

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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, Waterways 
Management Division, Coast Guard Sector New York; 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) 
with respect to this rule because immediate action is necessary to 
ensure the safety of the public in the vicinity of munitions recently 
discovered in Gravesend Bay by civilian divers. U.S. Navy underwater 
surveys confirmed the location of unexploded ordnance in Gravesend Bay. 
In the interest of public safety the U.S. Navy has requested that the 
Coast Guard restrict access to the area in which the munitions are 
located until the munitions can be rendered safe and removed. Immediate 
action is required to ensure that no unauthorized persons and vessels 
travel through or conduct underwater activities that may disturb the 
current location of the unexploded ordnance, such as dive operations or 
anchoring within close proximity to the unexploded munitions. 
Publishing a NPRM and waiting 30 days for comment would be contrary to 
the public interest because any delay in the effective date of this 
rule would expose mariners, the boating public, and divers to the 
potential hazards associated with unexploded ordnance. Furthermore, a 
separate notice of proposed rulemaking will be pursued, where the 
public will have the opportunity to provide comment.
    For these reasons, 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.

Basis and Purpose

    In response to media reports of military munitions found in 
Gravesend Bay by civilian divers, U.S. Navy Explosive Ordnance Disposal 
divers from Naval Weapons Station Earle conducted underwater surveys 
and confirmed the location of munitions on the bottom of Gravesend Bay. 
The munitions consist of approximately 1,500 rounds of 20mm ammunition, 
one 3-inch diameter projectile and two cartridge casings.
    In the interest of public safety, the U.S. Navy has requested that 
the Coast Guard limit access to the location in Gravesend Bay where the 
munitions are located until the ordnance could be rendered safe and 
removed.
    This temporary safety zone is necessary to ensure the safety of 
mariners, vessels, and civilian divers from the potential hazards 
associated with unexploded military munitions. This temporary final 
rule is an interim measure while a long-term rulemaking process is 
pursued separately under docket number USCG-2010-1091.

Discussion of Rule

    The Captain of the Port New York is establishing a temporary safety 
zone around the location of the unexploded ordnance site to ensure the 
safety of mariners and vessels transiting in the vicinity of unexploded 
ordnance as well as divers intending to dive in the area.
    The safety zone will encompass all waters of Gravesend Bay within 
110-yard radius of a point at the approximate position 40[deg]36'30'' 
N, 074[deg]02'14'' W (NAD 83), approximately 70 yards southeast of the 
Verrazano Bridge Brooklyn tower.
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port or the designated on-scene 
representative. Entry into, transiting, anchoring, or diving within the 
safety zone is prohibited unless authorized by the Captain of the Port 
New York, or the on-scene representative. The Captain of the Port or 
the on-scene representative may be contacted via VHF Channel 16.

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.
    This rule temporarily restricts access to a small portion of 
Gravesend Bay until unexploded military ordnance are rendered safe and 
removed. The safety zone is located in an area where the Coast Guard 
expects insignificant adverse impact to mariners from the zone's 
activation. This rule is intended to protect the public from the 
hazards associated with unexploded ordnance. Furthermore, vessels will 
be able to safely transit around the area.

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 vessels intending to 
transit or anchor in a portion of Gravesend Bay, in the vicinity of the 
Verrazano Bridge, Brooklyn, NY.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: Vessel 
traffic can safely transit around the zone. The rule limits access to a 
relatively small portion of the waterway where there is a known hazard 
until the hazard is rendered safe. Before the effective period, we will 
issue maritime advisories widely available to users of the waterway.

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

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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 cause 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 temporary 
safety zone on the waters of Gravesend Bay until recently discovered 
military munitions are rendered safe and removed from the area. An 
environmental analysis checklist and a categorical exclusion 
determination will be available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

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

    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, 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.


0
2. A new temporary Sec.  165.T01-1126 is added as follows:


Sec.  165.T01-1126  Safety Zone; Underwater Hazard, Gravesend Bay, 
Brooklyn, NY.

    (a) Regulated area. The following area is a temporary safety zone: 
All waters of Gravesend Bay within 110-yard radius of a point at the 
approximate position 40[deg]36'30'' N, 074[deg]02'14'' W (NAD 83), 
approximately 70-yards southeast of the Verrazano Bridge Brooklyn 
tower.
    (b) Effective period. This regulation is effective from 12:01 a.m. 
on December 18, 2010 until 11:59 p.m. June 30, 2011.
    (c) Regulations. (1) The general regulation contained in 33 CFR 
165.23 apply.
    (2) Entry into or movement within this zone is prohibited unless 
authorized by the Captain of the Port New York.
    (3) All persons and vessels shall comply with the instructions of 
the Coast Guard Captain of the Port New York or the designated on-
scene-patrol personnel. These designated on-scene-patrol personnel 
comprise commissioned, warrant, and petty officers of the Coast Guard. 
Upon being hailed by a U.S. Coast Guard vessel by siren, radio, 
flashing light or other means, the operator of a vessel shall proceed 
as directed.


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    Dated: December 17, 2010.
L.L. Fagan,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2011-1660 Filed 1-25-11; 8:45 am]
BILLING CODE 9110-04-P