[Federal Register Volume 76, Number 26 (Tuesday, February 8, 2011)]
[Proposed Rules]
[Pages 6728-6730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2689]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-1091]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish a permanent safety zone 
within the waters of Gravesend Bay, Brooklyn, New York. This proposed 
safety zone is necessary to provide for the protection of the maritime 
public and safety of navigation from recently discovered underwater 
explosive hazards in Gravesend Bay. This action 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. Entry into this zone would be prohibited unless authorized by the 
Captain of the Port New York or the designated on-scene representative.

DATES: Comments and related material must be received by the Coast 
Guard on or before March 10, 2011. Requests for public meetings must be 
received by the Coast Guard on or before February 23, 2011.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-1091 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 LTJG Eunice James, Coast Guard; telephone (718) 
354-4163, 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-2010-1091), 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, 
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-2010-1091'' in the ``Keyword'' box. 
Click ``Search'' 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, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2010-1091'' 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 on or before February 23, 2011 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.

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

[[Page 6729]]

munitions consist of approximately 1500 rounds of 20mm ammunition, one 
3-inch diameter projectile and two cartridge casings. The Captain of 
the Port (COTP) New York has established a temporary safety zone under 
docket number USCG-2010-1126 as an interim measure while this long-term 
rulemaking process is pursued.
    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 can be rendered safe and 
removed.
    This safety zone is necessary to ensure the safety of mariners, 
vessels, and civilian divers from the potential hazards associated with 
unexploded military munitions.

Discussion of Proposed Rule

    The COTP New York proposes to establish a safety zone around the 
location of an unexploded munitions site to ensure the safety of 
mariners and vessels transiting near the location of the ordnance as 
well as divers intending to dive in the area.
    The proposed safety zone will encompass all waters of Gravesend Bay 
within 110-yard radius of position 40[deg]36'30'' N, 074[deg]02'14'' W 
(NAD 83), approximately 70-yards southeast of the Verrazano Bridge 
Brooklyn tower.
    Entry into the proposed safety zone by any person or vessel will be 
prohibited unless specifically authorized by the COTP New York, or the 
designated on-scene representative. Persons desiring to enter the 
safety zone may request permission to enter from the Coast Guard COTP 
via VHF Channel 16 or by contacting the Sector New York Command Center 
at (718) 354-4353.
    The Coast Guard advises that entry into, transiting, diving, 
dredging, dumping, fishing, trawling, conducting salvage operations, 
remaining within or anchoring in this safety zone will be prohibited 
unless authorized by the COTP New York or the designated on-scene 
representative.
    The ``designated on-scene representative'' is any Coast Guard 
commissioned, warrant, or petty officer who has been designated by the 
COTP New York to act on her behalf.

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.
    Although this proposed rule restricts access to a small portion of 
Gravesend Bay until military munitions are rendered safe and removed, 
the effect of this regulation would not be significant due to the 
following reasons: the safety zone would cover only a small portion of 
the navigable waters within Gravesend Bay. Vessels would be able to 
safely transit around the area. In addition, vessels may be authorized 
to enter the zone with permission of the COTP New York.

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 rule will affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to 
transit, fish, dive, or anchor in a portion of Gravesend Bay.
    This proposed safety zone would not have a significant economic 
impact on a substantial number of small entities for the following 
reasons. This safety zone would limit access to a relatively small 
portion of the waterway. Vessel traffic could safely transit around the 
safety zone. Before the activation of the zone, we would issue maritime 
advisories widely available to users of the waterway in the vicinity of 
Gravesend Bay.
    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 call or e-mail LTJG Eunice James, Coast 
Guard Sector New York Waterways Management Division; telephone 718-354-
4163, e-mail [email protected]. 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 (adjusted for 
inflation) 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 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 proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice

[[Page 6730]]

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 that do 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 the establishment of a safety zone which can be 
categorically excluded, under figure 2-1, paragraph (34)(g), of the 
Commandant Instruction. 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, and 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; Pub. L. 107-295, 116 Stat. 2064; 
Department of Homeland Security Delegation No. 0170.1.

    2. Add Sec.  165.171 to read as follows:


Sec.  165.171  Safety Zone; Underwater Hazard, Gravesend Bay, Brooklyn, 
NY.

    (a) Location. The following area is a safety zone: All navigable 
waters of Gravesend Bay within a 110-yard radius of a point in 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 date. This safety zone is effective on July 01, 2011, 
twenty-four hours a day, seven days a week.
    (c) Regulations. (1) The general regulation contained in 33 CFR 
165.23 apply.
    (2) Entry into, transiting, diving, dredging, dumping, fishing, 
trawling, conducting salvage operations, remaining within or anchoring 
within this safety zone is prohibited unless authorized by the Captain 
of the Port New York or the designated on-scene representative.
    (3) The ``designated on-scene representative'' is any Coast Guard 
commissioned, warrant, or petty officer who has been designated by the 
Captain of the Port New York.
    (4) Vessel operators desiring to enter or operate within the safety 
zone may contact the Captain of the Port New York or his designated 
representative at the Coast Guard Sector New York Command Center via 
VHF Channel 16 or by phone at (718) 354-4353 to request permission.
    (5) Vessel operators given permission to enter or operate in the 
safety zone must comply with all directions given to them by the 
Captain of the Port New York or the on-scene representative.

    Dated: January 14, 2011.
L.L. Fagan,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2011-2689 Filed 2-7-11; 8:45 am]
BILLING CODE 9110-04-P