[Federal Register Volume 76, Number 31 (Tuesday, February 15, 2011)]
[Rules and Regulations]
[Pages 8654-8656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3351]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-0794]
RIN 1625-AA11


Regulated Navigation Area; Hudson River South of the Troy Locks, 
NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area 
(RNA) on the navigable waters of the Hudson River in New York, south of 
the Troy Locks. This action is necessary to promote navigational 
safety, provide for the safety of life and property, and facilitate the 
reasonable demands of commerce. This action will impose restrictions on 
vessels operating within the waters of the Hudson River south of the 
Troy Locks when ice is a threat to navigation.

DATES: This rule is effective in the CFR on February 15, 2011. This 
rule is effective with actual notice for purposes of enforcement on 
January 20, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2010-0794 and are available online by going to 
http://www.regulations.gov, inserting USCG-2010-0794 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is 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 rule, 
call or e-mail Chief Warrant Officer Kary Moss, Coast Guard Sector New 
York Waterways Management Division; telephone 718-354-4117, 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

    On December 10, 2010, we published a notice of proposed rulemaking 
(NPRM) entitled ``Regulated Navigation Area; Hudson River South of the 
Troy Locks, NY'' in the Federal Register (75 FR 76943). We received no 
comments on the proposed rule. A public meeting was not requested and 
none was held.
    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. The 30-day delay would be contrary 
to the public interest. As of January 20, 2011, ice formations in the 
Hudson River require the commencement of Coast Guard icebreaking 
operations. Without immediate implementation of this rule, the Coast 
Guard will not be able to prevent underpowered tugs from transiting 
through identified, unsafe ice conditions. This could lead to these 
tugs with barges becoming beset in the ice and further delaying the 
delivery of home heating oil to communities along the Hudson River and 
within the region, as well as posing a safety threat to the environment 
and a potential hazard to navigation.

Basis and Purpose

    The legal basis for this rule is 33 U.S.C. 1221-1236; 46 U.S.C. 
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 
6.04-6, and 160.5; and Department of Homeland Security Delegation No. 
0170.1, which collectively authorize the Coast Guard to define RNAs.
    Historically ice has been an impediment to navigation during 
certain times of the year on the navigable waters of the Hudson River 
south of the Troy Locks. West Point, Crum Elbow, Esopus Meadows, 
Stuyvesant Anchorage, Hudson Anchorage, Silver Point, and Hyde Park are 
all natural choke points on the Hudson River where ice buildup has 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 thereby 
affecting the vessel's stability. Ice may also cause significant damage 
to propellers, rudders, and hull plating.
    The formation of ice on the Hudson River is subject to 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.
    Previous ice seasons have shown that vessels with less than 3000 
horsepower, while engaged in towing operations, have significant 
difficulty transiting the Hudson River in locations where ice thickness 
is on average 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.
    It sometimes becomes necessary to impose operating restrictions to 
ensure the safe navigation of vessels. During the 2009-2010 ice 
navigation season the Coast Guard promulgated a Temporary Final Rule 
that established an RNA for that period. That rule established 
restrictions similar to those that the Coast Guard establishes in this 
rule. This rule allows the Coast Guard to restrict and manage vessel 
movement when hazardous ice conditions exist within a specified area of 
the Hudson River.

Background

    The Regulated Navigation Area is intended to restrict vessels with 
less than 3000 horsepower (HP) engaged in towing operations from 
operating on the Hudson River south of the Troy Locks when ice 
thickness is on average eight inches or greater, unless authorized by 
the Captain of the Port (COTP) New York or a designated representative.
    The COTP New York will notify mariners of the location and 
thickness of the ice as well as any restrictions via marine broadcast, 
Local Notices to Mariners, and VTS New York. For the purpose of this 
rule, the definition of horsepower in 46 CFR 10.107 applies.
    When the ice thickness reaches an average of eight inches or 
greater on the Hudson River along reported routes, vessels of less than 
3,000 HP engaged in towing operations will not be authorized to transit 
unless in conjunction with scheduled Coast Guard icebreaking operations 
in the

[[Page 8655]]

area, or operating with an assist tug or as part of a convoy, or 
specifically authorized by the COTP New York.
    Operators of vessels that do not meet the criteria of the operating 
restrictions, but who believe that they have the capability to operate 
in ice safely, may seek a waiver from the COTP New York to continue 
operating. Waivers may be requested by calling telephone number (718) 
354-4356 or on VHF channel 13 or 16.

Discussion of Comments and Changes

    The Coast Guard received no comments on the proposed rulemaking. No 
changes were made to the Final Rule.

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 the Regulated Navigation Area 
will only be enforced at the location on the navigable waters of the 
Hudson River south of the Troy Locks where ice conditions on average 
are eight inches or greater, and only restrict vessels that are less 
than 3,000 horsepower while engaged in towing operations.

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 tugs with engines 
below 3,000 total horsepower attempting to transit the Hudson River in 
cold weather months when ice thickness is on average eight inches or 
greater.
    This RNA will not have a significant economic impact on a 
substantial number of small entities for the following reasons: Tugs 
with less than 3,000 total horsepower have historically been unable to 
transit the Hudson River when ice thickness is on average eight inches 
or greater. Operators have generally taken these vessels out of service 
or use vessels that are capable of operating in such conditions.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
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 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

[[Page 8656]]

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 establishing a Regulated Navigation 
Area restricting tugs with less than 3,000 total horsepower from 
transiting the Hudson River when ice thickness is on average eight 
inches or greater. An environmental analysis checklist and a 
categorical exclusion determination are available in the docket where 
indicated under ADDRESSES.

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 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, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.165 to read as follows:


Sec.  165.165  Regulated Navigation Area; Hudson River South of the 
Troy Locks, NY.

    (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 
(COTP) New York.
    (2) Horsepower (HP) means the total maximum continuous shaft 
horsepower of all the vessel's main propulsion machinery.
    (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 
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 on average is 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 COTP 
can be contacted at (718) 354-4356, and the public may contact the COTP 
to suggest changes or improvements in the terms of this Regulated 
Navigation Area.
    (3) All persons desiring to transit through a portion of the 
regulated area that has operating restrictions 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.
    (4) 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: January 20, 2011.
Daniel A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2011-3351 Filed 2-14-11; 8:45 am]
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