[Federal Register Volume 77, Number 225 (Wednesday, November 21, 2012)]
[Rules and Regulations]
[Pages 69761-69765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-28272]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-1009]
RIN 1625-AA11


Regulated Navigation Area; Recovery Operations, the Port of New 
York and New Jersey, NJ and NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is establishing a temporary Regulated 
Navigation Area (RNA) encompassing all waters of the Sector New York 
and Captain of the Port (COTP) New York Zone south of the George 
Washington Bridge at mile 11.0 on the Hudson River and west of the Hell 
Gate Railroad bridge at mile 8.2 on the East River. This action is 
necessary to prevent maritime traffic from interfering with spilled oil 
recovery operations, removal of sunken recreational vessels, debris, 
and cargo containers, and to ensure the safety of the response crews on 
scene. It will do

[[Page 69762]]

so by prohibiting vessels from entering or remaining in the RNA unless 
authorized by the COTP or his Designated Representative.

DATES: This rule is effective with actual notice for purposes of 
enforcement from November 9, 2012 through February 1, 2013, and 
effective in the Code of Federal Regulations from November 21, 2012 
through February 1, 2013. Comments and related material must be 
received by the Coast Guard on or before December 7, 2012. Requests for 
public meetings must be received by the Coast Guard on or before 
December 7, 2012.

ADDRESSES: Documents mentioned in this preamble are part of Docket 
Number USCG-2012-1009. To view documents mentioned in this preamble as 
being available in the docket, go to http://www.regulations.gov, type 
the docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on 
``Open Docket Folder'' on the line associated with this rulemaking. 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.
    You may submit comments, identified by docket number, using any one 
of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: (202) 493-2251.
    (3) Mail or Delivery: 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. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. The telephone number is 202-366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for further instructions 
on submitting comments. To avoid duplication, please use only one of 
these three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Jeff Yunker, Waterways Management Division at Coast 
Guard Sector New York, telephone (718) 354-4195, email 
[email protected] or Lieutenant Isaac Slavitt, First Coast Guard 
District Waterways Management Division, Boston, MA, telephone (617) 
223-8385, email [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:

Table of Acronyms

APA Administrative Procedure Act
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. 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.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, 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 at 
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, 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, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking.
    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.

2. 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, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on Open Docket Folder on the line associated with this 
rulemaking. 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.

3. 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).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one, using one of the 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.

B. Regulatory History and Information

    The Coast Guard is issuing this temporary interim rule without 
prior notice and opportunity to comment pursuant to authority under the 
Administrative Procedure Act (APA) (5 U.S.C. 553). Section 553(b) 
provides that a general notice of proposed rulemaking (NPRM) must be 
published ``unless persons subject thereto are named and either 
personally served or otherwise have actual notice thereof in accordance 
with law.'' This rule identifies the persons who will be subject to the 
RNA regulation: All mariners in or seeking to enter a defined area of 
the Sector New York and COTP New York zone between November 9, 2012, 
and February 1, 2013. Section 553(b)(B) 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 publishing a NPRM would be contrary to public interest 
since immediate

[[Page 69763]]

action is necessary to protect vessels, persons, port infrastructure, 
and salvage crews in the Port of New York and New Jersey from hazards 
created by multiple oil spill recovery operations, debris, cargo 
container, and recreational vessel salvage and retrieval operations.
    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. Normal notice and comment 
procedures cannot be followed due to the immediate threat of collision 
and/or exposure to hazardous pollutants posed by the sunken containers, 
vessels, and other floating debris and associated pollution response 
and recovery operations associated with the post-storm recovery from 
Hurricane Sandy.

C. 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.
    The oil pollution response and recovery operations of sunken 
vessels, cargo containers, and debris involves large machinery and 
construction vessel operations above and in the navigable waters of the 
Port of New York and New Jersey pose hazards to waterway users. The 
ongoing operations are, by their nature, hazardous and pose risks both 
to recreational and commercial traffic as well as the response and 
recovery crews. In order to mitigate the inherent risks involved in 
these operations, it is necessary to control vessel movement through 
the area.
    The purpose of this rule is to ensure the safety of waterway users, 
the public, and pollution response and recovery workers for the 
duration of the response and recovery operations during the effective 
period. The RNA will also protect recovery vessels desiring to transit 
the Arthur Kill by ensuring that vessels are only permitted to transit 
at no-wake speed.

D. Discussion of the Interim Rule

    The Coast Guard is establishing a temporary RNA encompassing all 
waters of the Sector New York and COTP zone, codified at 33 CFR 3.05-
30, south of the George Washington Bridge at mile 11.0 on the Hudson 
River and west of the Hell Gate Railroad Bridge at mile 8.2 on the East 
River. This temporary RNA was necessitated by Hurricane Sandy, which 
struck the New York City area in late October 2012 and which caused 
damage requiring immediate cleanup efforts.
    The COTP New York is enforcing a RNA in the vicinity of current oil 
spill response and debris recovery operations due to post Hurricane 
Sandy conditions. The recovery of spilled oil, debris, vessels, and 
cargo containers involves large machinery and construction vessel 
operations above and upon the navigable waters of the Port of New York 
and New Jersey. These operations are sensitive to water movement, and 
wake from passing vessels could pose significant risk of injury or 
death to response and recovery workers. Certain portions of the 
waterway within the RNA must be closed to vessel traffic due to the 
quantity of sunken vessels and or floating debris. The ongoing recovery 
operations are, by their nature, hazardous and pose risks to all vessel 
traffic. In order to mitigate the inherent risks involved in the 
operations, it is necessary to control vessel movement through the 
area.
    This action is intended to restrict vessel traffic on the Arthur 
Kill, Buttermilk Channel, Great Kills Harbor north of (pa) 40-32-
01.290N, 074-08-30.895W (Great Kills Harbor Channel Buoy 9 LLNR 35488) 
and (pa) 40-32-02.854N, 074-08-28.532W (Great Kills Harbor Channel Buoy 
10 LLNR 35490), Sheepshead Bay west of (pa) 40-34-53.198N, 073-55-
51.984W (Sheepshead Bay Lighted Buoy 12 LLNR 34370), and Jamaica Bay 
east of the Gil Hodges Memorial/Marine Parkway Bridge at mile 3.0. 
Vessels may be restricted from additional areas as necessary due to the 
dynamic nature of this response and recovery operation.
    These operations are tentatively scheduled to take place starting 
on November 9, 2012 and lasting through February 1, 2013. Vessels 
required to participate in the Vessel Movement Reporting System 
codified at 33 CFR 161 Subpart B are required to transit the Arthur 
Kill at No Wake speed.
    The COTP will cause notice of enforcement or suspension of 
enforcement of this RNA to be made by all appropriate means to achieve 
the widest distribution among the affected segments of the public. Such 
means of notification will include, but is not limited to, Marine 
Information Broadcasts, Local Notice to Mariners, and at http://homeport.uscg.mil/newyork.

E. Regulatory Analyses

    We developed this temporary rule after considering numerous 
statutes and executive orders related to rulemaking. Below we summarize 
our analyses based on these statutes and executive orders.

1. Regulatory Planning and Review

    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, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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 temporary rule will affect the following entities, some of 
which may be small entities: The owners or operators of vessels 
intending to transit or anchor in a portion of the waters of the Sector 
New York and COTP New York zone during the effective period.
    This RNA will not have a significant economic impact on a 
substantial number of small entities for the following reasons: The RNA 
will only require authorized vessels to transit at no-wake speed when 
transiting the Arthur Kill. Vessels can transit through Anchorage 
Channel and the East River to bypass Buttermilk Channel. Great Kills 
Harbor and Sheepshead Bay are already effectively closed due to the 
quantity of sunken vessels and debris in the waterways. Also, due to 
the extent of continuing debris reports received by the U.S. Coast 
Guard and U.S. Army Corps of Engineers (USACE), the COTP has determined 
that the local waters are not safe for recreational vessel transits 
after daylight hours and Arthur Kill, Buttermilk Channel, Great Kills 
Harbor north of (pa) 40-32-01.290N, 074-08-30.895W (Great Kills Harbor 
Channel Buoy 9 LLNR 35488) and (pa) 40-32-02.854N, 074-08-28.532W 
(Great Kills Harbor Channel Buoy 10 LLNR 35490), Sheepshead Bay west of 
(pa) 40-34-53.198N, 073-55-51.984W (Sheepshead Bay Lighted Buoy 12 LLNR 
34370), and Jamaica Bay east of the Gil Hodges Memorial/Marine Parkway 
Bridge at mile 3.0 are not safe for recreational vessel transits at any 
time. The RNA will only be in effect until response and recovery 
operations are complete. Portions of the RNA will be opened to vessel 
traffic as soon as the COTP New

[[Page 69764]]

York deems it safe to do so. We will issue maritime advisories widely 
available to users of the port updating the status and locations of all 
waters restricted to vessel transits as they become available.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. Collection of Information

    This rule will not call for a new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and determined 
that this rule does not have implications for federalism.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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.

8. 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.

9. 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.

10. Protection of Children From Environmental Health Risks

    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.

11. 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.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 determined 
that this action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This temporary rule involves a RNA which requires vessels 
to transit at No Wake speed and restricts some areas to vessel transits 
during Hurricane Sandy response and recovery operations. This temporary 
rule is categorically excluded from further review under paragraph 
34(g) of Figure 2-1 of the Commandant Instruction. An environmental 
analysis checklist supporting this determination and a Categorical 
Exclusion Determination will be available in the docket where indicated 
under ADDRESSES. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this rule.

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. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 
U.S.C. 191, 195; 33 CFR 1.05-1, 6.l04-1, 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.T01-1009 to read as follows:


Sec.  165.T01-1009  Safety Zone; Recovery Operations, the Port of New 
York and New Jersey, NJ and NY.

    (a) Regulated Navigation Area. The following area is a Regulated 
Navigation Area (RNA): All navigable waters of the Sector New York and 
Captain of the Port (COTP) Zone defined in 33 CFR 3.05-30, south of the 
George Washington Bridge at mile 11.0 on the Hudson River and west of 
the Hell Gate Railroad Bridge at mile 8.2 on the East River.
    (b) Effective dates and enforcement periods. This rule is effective 
and will be enforced with actual notice from

[[Page 69765]]

November 9, 2012 through February 1, 2013, except that enforcement may 
be suspended in accordance with paragraph (d)(8) of this section.
    (c) Definitions. The following definitions apply to this section:
    Designated representative means any Coast Guard commissioned, 
warrant or petty officer of the U.S. Coast Guard who has been 
designated by the COTP Sector New York, to act on his or her behalf. 
The designated representative may be on an official patrol vessel or 
may be on shore and will communicate with vessels via VHF-FM radio or 
loudhailer. In addition, members of the Coast Guard Auxiliary may be 
present to inform vessel operators of this regulation.
    Official patrol vessel means any Coast Guard, Coast Guard 
Auxiliary, state, or local law enforcement vessels assigned or approved 
by the COTP.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.13, as well as the following regulations, apply.
    (2) During periods of enforcement, all vessels must transit at a 
No-wake speed to minimize surge when transiting the Arthur Kill.
    (3) During periods of enforcement, all persons and vessels given 
permission to enter or operate in the RNA must comply with the 
instructions of the COTP or the designated representative. Upon being 
hailed by an official patrol vessel by siren, radio, flashing light, or 
other means, the operator of a vessel must proceed as directed.
    (4) During periods of enforcement, no vessels are authorized to 
transit or operate within Buttermilk Channel, within Great Kills Harbor 
north of (pa) 40-32-01.290N, 074-08-30.895W (Great Kills Harbor Channel 
Buoy 9 LLNR 35488) and (pa) 40-32-02.854N, 074-08-28.532W (Great Kills 
Harbor Channel Buoy 10 LLNR 35490), within Sheepshead Bay west of (pa) 
40-34-53.198N, 073-55-51.984W (Sheepshead Bay Lighted Buoy 12 LLNR 
34370), and within Jamaica Bay east of the Gil Hodges Memorial/Marine 
Parkway Bridge at mile 3.0.
    (5) Vessel operators required to participate in the Vessel Movement 
Reporting System codified at 33 CFR part 161, subpart B, and desiring 
to enter or operate within the RNA must contact the COTP or the 
designated representative via VHF channel 11 or 16 or 718-354-4088 
(Sector New York Vessel Traffic Center) to obtain permission to do so.
    (6) Recreational vessel operators desiring to enter or operate 
within the RNA must contact the COTP or the designated representative 
via VHF channel 16 or 718-354-4353 (Sector New York Command Center) to 
obtain permission to do so, and will be permitted to enter or operate 
within the RNA only during daylight hours.
    (7) The COTP may impose additional requirements within the RNA due 
to unforeseen changes to the response and recovery operations.
    (8) The COTP will make notice of specific waterway closures and 
restrictions, and of any suspension of enforcement, by all means 
available to affect the widest public distribution including, but not 
limited to, Marine Information Broadcasts, Local Notice to Mariners, 
and at http://homeport.uscg.mil/newyork.

    Dated: November 9, 2012.
D.B. Abel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2012-28272 Filed 11-20-12; 8:45 am]
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