[Federal Register Volume 77, Number 5 (Monday, January 9, 2012)]
[Rules and Regulations]
[Pages 1023-1025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-108]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0727]
RIN 1625-AA11


Regulated Navigation Area; Arthur Kill, NY and NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is amending the Regulated Navigation Area 
(RNA) in the navigable waters of the Arthur Kill in New York and New 
Jersey. The amendment allows the Coast Guard to suspend enforcement of 
some RNA requirements when they are found to be impracticable and 
unnecessary for the maintenance of safety.

DATES: This rule is effective in the CFR on January 9, 2012 until 5 
p.m. on April 1, 2014. This rule is effective with actual notice for 
purposes of enforcement from December 16, 2011, until 5 p.m. on April 
1, 2014. Public comments will be accepted and reviewed by the Coast 
Guard through April 1, 2014.

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-2011-0727 and are available online by going to 
http://www.regulations.gov, inserting USCG-2011-0727 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 email Mr. Jeff Yunker, U.S. Coast Guard Sector New York 
Waterways Management Division, Coast Guard; telephone (718) 354-4195, 
email [email protected], or Lieutenant Junior Grade Isaac Slavitt, 
Coast Guard First District Waterways Management Branch, telephone (617) 
223-8385, email [email protected]. If you have questions on 
viewing 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.
    The Coast Guard will evaluate and revise this rule as necessary to 
address significant public comments. Alternatively, if the dredging 
project necessitating the interim rule is completed before April 1, 
2014, and we receive no public comments that indicate a substantive 
need to revise the rule, we may allow it to expire on that date without 
further regulatory action.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-0727), 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 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 email 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-2011-0727'' in the ``Keyword'' box. 
Click ``Search'' then click on the balloon shape in the ``Actions'' 
column. If you submit 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

[[Page 1024]]

the comment period and will consider those comments before issuing a 
final rule.

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-2011-0727'' 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 within the meaning of 
the Administrative Procedure Act (APA), 5 U.S.C. 553. But you may 
submit a request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe such 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. The Coast Guard has held or participated in 17 
locally announced informal waterway user meetings where waterway 
closures and restrictions were discussed. We anticipate holding 
additional informal meetings, with opportunity for public questions or 
comments, during this project. We will provide written summaries of any 
such meetings in the docket.

Regulatory Information

    This temporary interim rule (TIR) is the second to address the RNA 
in the Arthur Kill. An earlier TIR added the basic RNA regulation for 
that waterway: 33 CFR 165.T01-0727 (76 FR 52569; Aug. 23, 2011).
    We are issuing this second TIR without prior notice and opportunity 
to comment, under the authority of the Administrative Procedure Act 
(APA), 5 U.S.C. 553(b), and giving effect to it immediately (with 
actual notice) under the authority of the APA, 5 U.S.C. 553(d)(1). This 
second TIR adds 33 CFR 165.T01-0727(b)(9), which allows us to suspend 
the enforcement of specific RNA requirements. We find good cause for 
adding paragraph (b)(9) without prior notice and comment, and without 
the normal 30-day APA waiting period, because doing so relieves a 
regulatory restriction that would require strict observation of the 
RNA's requirements under all conditions, and because we know of 
conditions under which it would be unnecessary and contrary to the 
public interest for us to enforce those requirements: At three informal 
meetings held with stakeholders between July and September 2011, we 
learned that the RNA's requirement to maintain a distance of at least 
150 feet from drilling and blasting equipment is not feasible for large 
commercial ships with tugs alongside. Moreover, the distance 
requirement is not necessary for the protection of safety, when all 
drilling and blasting equipment is located in an enclosed portion of 
the navigable channel away from the normal flow of marine traffic. We 
can foresee other possible circumstances in which it would be contrary 
to the public interest and unnecessary for safety to enforce the RNA's 
requirements. It would be impracticable and contrary to the public 
interest to continue enforcing those requirements solely to allow time 
for publication of a notice of proposed rulemaking and for taking 
public comments on such a notice.

Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the 
authority to establish RNAs in defined water areas that are determined 
to have hazardous conditions and in which vessel traffic can be 
regulated in the interest of safety. See 33 U.S.C. 1231 and Department 
of Homeland Security Delegation No. 0170.1.
    The purpose of this rule is to ensure the safe transit of vessels 
in the area and to protect all persons, vessels, and the marine 
environment during the ongoing channel deepening project.

Background

    The RNA encompasses all waters of the North of Shooters Island 
Reach, Elizabethport Reach, and Gulfport Reach in the Arthur Kill. 
Consult the first TIR for further background information on the RNA. 
Drilling and blasting operations began in the Arthur Kill on Tuesday, 
August 2, 2011. We expect those operations to conclude within the 
lifespan of this second TIR, which like the first expires on April 1, 
2014.

Discussion of Comments and Changes

    We received comments from the harbor pilots during the locally 
announced informal waterway user meetings held between July and 
September 2011. They noted that the requirement for all vessels to 
remain at least 150 feet from drilling and blasting equipment is not 
feasible for large commercial ships with tugs alongside, and 
unnecessary for the protection of safety when all drilling and blasting 
equipment is located in an enclosed portion of the navigable channel 
away from the normal flow of marine traffic. We agree and are adding 
paragraph (b)(9) to the regulatory text for our RNA, allowing us to 
suspend enforcement of specific requirements under circumstances such 
as these, upon a mariner giving appropriate notice of a vessel transit 
in the regulated area.

Regulatory Analyses

    We developed both the first TIR and this second TIR after 
considering numerous statutes and executive orders related to 
rulemaking. Below we summarize our analyses based on 13 of these 
statutes or executive orders.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, 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. For a discussion of the RNA's overall economic 
impact, see our first TIR. The economic impact of this second TIR`s 
addition of 33 CFR 165.T01-0727(b)(9) will be favorable because it 
allows us to suspend enforcement of provisions against the regulated 
public.

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. In the first TIR, we 
certified under 5 U.S.C. 605(b) that this rule will not have a 
significant economic impact on a substantial number of small entities, 
and we supported that certification. We

[[Page 1025]]

repeat that certification for this second TIR, which will have a 
favorable though insignificant impact on small entities by allowing us 
to suspend enforcement of provisions against them.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we continue to offer to assist 
small entities in understanding the RNA and its impact on them.
    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.

Miscellaneous

    The amendment made by this second TIR allows us to suspend 
enforcement of the RNA's requirements. As such, the amendment has no 
further impact on the analyses included in the first TIR of collection 
of information (Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520); 
Federalism (Executive Order 13132), the Unfunded Mandates Reform Act of 
1995 (2 U.S.C. 1531-1538), the taking of private property (Executive 
Order 12630), civil justice reform (Executive Order 12988), protection 
of children (Executive Order 13045), Indian tribal governments 
(Executive Order 13175), energy (Executive Order 13211), technical 
standards (the National Technology Transfer and Advancement Act, 15 
U.S.C. 272 note), or the environment. This rule is categorically 
excluded, under figure 2-1, paragraph (34)(g), of Commandant 
Instruction M16475.1D. This rule involves the establishment of a RNA. 
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. In 33 CFR 165.T01-0727, add paragraph (b)(9) to read as follows:


Sec.  165.T01-0727  Regulated Navigation Area; Arthur Kill, NY and NJ.

* * * * *
    (b) * * *
    (9) Suspension of enforcement: the Captain of the Port (COTP) New 
York will cause notice of enforcement, suspension of enforcement, or 
closure of the waterway to be made by all appropriate means to achieve 
the widest distribution among the affected segments of the public. Such 
means of notification may include, but are not limited to, Broadcast 
Notice to Mariners, Local Notice to Mariners and Vessel Traffic Service 
New York (VTSNY). Such notification will include the date and time that 
enforcement is suspended as well as the date and time that enforcement 
will resume.
* * * * *

    Dated: December 16, 2011.
D.A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2012-108 Filed 1-6-12; 8:45 am]
BILLING CODE 9110-04-P