[Federal Register Volume 81, Number 41 (Wednesday, March 2, 2016)]
[Rules and Regulations]
[Pages 10762-10764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04474]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0100]
RIN 1625-AA00


Safety Zone; Newtown Creek, Queens, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters of Newtown Creek between the Greenpoint Avenue Bridge 
(mile 1.3) and the entrance to Dutch Kills. The safety zone is needed 
to protect personnel, vessels, and the marine environment from 
potential hazards created by a sunken vessel adjacent to the Federal 
navigation channel. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port 
New York.

DATES: This rule is effective without actual notice from March 2, 2016 
through March 5, 2016. For the purposes of enforcement, actual notice 
will be used from February 3, 2016 through March 2, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0100 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Mr. Jeff Yunker, Coast Guard Sector New York Waterways 
Management Division, U.S. Coast Guard; telephone 718-354-4195, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port New York
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary 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 a vessel sank adjacent to the Federal 
navigation channel at the Sims Hugo Neu facility on Newtown Creek and 
immediate action is needed to respond to the potential safety hazards 
associated with removing cargo from the vessel and refloating the 
vessel. It is impracticable to publish an NPRM because we must 
establish this safety zone by February 3, 2016.
    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast 
Guard finds that good cause exists for making it effective less than 30 
days after publication in the Federal Register. Delaying the effective 
date of this rule would be contrary to public interest because 
immediate action is needed to respond to the potential safety hazards 
associated with removing cargo from the vessel and refloating the 
vessel.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The COTP has determined that potential hazards associated with 
refloating a sunken barge adjacent to the Federal navigation channel 
starting February 4, 2016 will be a safety concern for anyone between 
the Greenpoint Avenue Bridge (mile 1.3) and the confluence of Newtown 
Creek and Dutch Kills during this process. This rule is needed to 
protect personnel, vessels, and the marine environment in the navigable 
waters within the safety zone while cargo is removed from the vessel 
and the vessel is refloated. Therefore, this rule will remain in effect 
for the time stated herein but will be cancelled if response activities 
are finished cease before March 5, 2016. The preliminary estimate for 
completion of the cargo removal and refloating the vessel is February 
6, 2016. This TFR provides for an extended enforcement period in case 
of unforeseen circumstances that prevent the contractors from 
completing the work within their initial estimated timeline.

IV. Discussion of the Rule

    This rule establishes a safety zone from 7 a.m. on Wednesday, 
February 3, 2016 through 11:59 p.m. on Saturday, March 5, 2016. The 
safety zone will cover all navigable waters between the Greenpoint 
Avenue Bridge (mile 1.3) and the confluence of Newtown Creek and Dutch 
Kills. The duration of the zone is intended to protect personnel, 
vessels, and the marine environment in these navigable waters while the 
vessel is being refloated. No vessel or person will be permitted to 
enter the safety zone without obtaining permission from the COTP or a 
designated representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive order related to rulemaking.

[[Page 10763]]

Below we summarize our analyses based on a number of these statutes and 
Executive orders, and we discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. Executive Order 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This rule has not been designated 
a ``significant regulatory action,'' under Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    This regulatory action determination is based on the size, 
location, duration, and time-of-year of the safety zone. Vessel traffic 
will be able to safely transit through this safety zone which will 
impact a small designated area of Newtown Creek in Queens, NY after 
making passing arrangements with the work vessels while cargo is being 
removed from the sunken barge during daylight hours on February 3, 
2016. Moreover, the Coast Guard will issue Broadcast Notice to Mariners 
via VHF-FM marine channel 16 about the zone and the rule allows vessels 
to seek permission to enter the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as 
amended, requires Federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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.
    While some owners or operators of vessels intending to transit the 
safety zone may be small entities, for the reasons stated in section 
V.A above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 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 
section.
    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.

C. 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).

D. Federalism and Indian Tribal Governments

    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 have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

E. 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.

F. 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 (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 
rule involves a safety zone lasting less than 31 days that will 
prohibit entry between the Greenpoint Avenue Bridge (mile 1.3) and the 
entrance to Dutch Kills on Newtown Creek being used by personnel to 
remove cargo from a sunken vessel and to refloat the vessel. It 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 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.

G. 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.

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; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5;

[[Page 10764]]

Department of Homeland Security Delegation No. 0170.1.

0
2. Add Sec.  165.T01-0100 to read as follows:


Sec.  165.T01-0100  Safety Zone: Newtown Creek, Queens, NY

    (a) Location. The following area is a temporary safety zone: All 
U.S. navigable waters of Newtown Creek between the Greenpoint Avenue 
Bridge (mile 1.3) and the entrance to Dutch Kills
    (b) Enforcement period. The safety zone described in paragraph (a) 
of this section will be enforced from February 3, 2016 until March 5, 
2016, unless terminated sooner by the COTP.
    (c) Regulations. (1) In accordance with the general regulations in 
33 CFR 165.23, entry into, transiting, or anchoring within this safety 
zone is prohibited unless authorized by the COTP or a designated on 
scene representative.
    (3) A ``on-scene representative'' of the COTP is any Coast Guard 
commissioned, warrant or petty officer or a Federal, State or local law 
enforcement officer designated by or assisting the COTP to act on his 
behalf.
    (4) Vessel operators must contact the COTP via the Command Center 
to obtain permission to enter or operate within the safety zone. The 
COTP may be contacted via VHF Channel 16 or at (718) 354-4353. Vessel 
operators given permission to enter or operate within the safety zone 
must comply with all directions given to them by the COTP, via the 
Command Center or an on-scene representative.

    Dated: Februrary 3, 2016.
M.H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2016-04474 Filed 3-1-16; 8:45 am]
 BILLING CODE 9110-04-P