[Federal Register Volume 82, Number 103 (Wednesday, May 31, 2017)]
[Rules and Regulations]
[Pages 24847-24851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11212]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0434]
RIN 1625-AA11


Regulated Navigation Area; East River, Brooklyn, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary regulated 
navigation area (RNA) for the navigable waters of the Manhattan side of 
the East River, south of Dupont Street in Greenpoint, Brooklyn, and 
East 25th Street in Manhattan, and north of a line drawn from the 
northwest corner of Pier 5 Brooklyn to the northeast corner of the 
Governors Island Ferry Manhattan Terminal. The RNA is needed to protect 
personnel, vessels, and the marine environment from potential hazards 
associated with a dielectric oil spill response. This RNA establishes 
vessel speed restrictions on vessels transiting near the pollution 
response area unless specifically authorized by the First District 
Commander or the Captain of the Port New York to exceed those 
restrictions.

DATES: This rule is effective without actual notice from May 31, 2017 
through 5 p.m. on July 14, 2017. For the purposes of enforcement, 
actual notice will be used from 4 p.m. May 16, 2017, through May 31, 
2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0434 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. Craig Lapiejko, Waterways Management at Coast Guard 
First District, telephone 617-223-8351, email [email protected] 
or Mr. Jeff Yunker, Sector New York Waterways Management Division; 
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
RNA Regulated Navigation Area
TFR Temporary final rule
U.S.C. United States Code

II. Background Information and Regulatory History

    On May 8, 2017, we established a temporary safety zone entitled 
``Safety Zone; East River and Buttermilk Channel, Brooklyn, NY'' for 
emergency pollution response. The effective period for the safety zone 
is from 4 p.m. on May 8, 2017, until 5 p.m. on July 14, 2017. This 
safety zone prohibits all vessels from transiting through the

[[Page 24848]]

Brooklyn side of the East River and Buttermilk Channel, south of Dupont 
Street in Greenpoint, Brooklyn and East 25th Street in Manhattan, and 
Buttermilk Channel, north of the Buttermilk Channel Entrance Lighted 
Gong Buoy 1 (LLNR 36985).
    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 impracticable and contrary to the 
public interest to delay this rule to let a comment period run. It 
would be impracticable and contrary to the public interest because 
waiting for a comment period to run would inhibit the Coast Guard's 
response to protecting the environment and public from the dangers 
associated with a maritime pollution response effort.
    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 impracticable and contrary to public 
interest for the same reasons discussed in the preceding paragraph.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The First District Commander and COTP have determined that 
vessels producing a wake near the emergency pollution response 
activities and in-water shoreside repair operations will be a safety 
concern for pollution response vessels, machinery, and personnel. 
Further, the emergency pollution response activities pose hazards to 
the boating public and the maritime environment. This rule is necessary 
to limit damage to deployed containment boom, and to protect personnel, 
vessels, and the marine environment in the navigable waters adjacent to 
the RNA while these activities are in progress.

IV. Discussion of the Rule

    This rule establishes a RNA from 4 p.m. May 16, 2017 through 5 p.m. 
July 14, 2017. The RNA will cover all navigable waters of the Manhattan 
side of the East River, south of Dupont Street in Greenpoint, Brooklyn, 
and East 25th Street in Manhattan, and north of a line drawn from the 
northwest corner of Pier 5 Brooklyn to the northeast corner of the 
Governors Island Ferry Manhattan Terminal.

[[Page 24849]]

[GRAPHIC] [TIFF OMITTED] TR31MY17.000

    The duration of the RNA is intended to limit damage to the 
pollution containment boom, and protect personnel, vessels, and the 
marine environment adjacent to these navigable waters during the 
emergency pollution response. No vessel or person will be permitted to 
produce a wake and may not attain speeds greater than five (5) knots 
unless a higher minimum speed is necessary to maintain bare steerageway 
without obtaining permission from the First District Commander, COTP, 
or a designated representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
Executive orders related to rulemaking. 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, and duration of the RNA. Vessel traffic will be able to 
safely transit through this RNA, which will impact a small designated 
area of the East River, NY during emergency pollution response 
operations. Vessels will be able to transit at a ``Slow-No Wake'' speed 
limit and vessels may attain speeds greater than five (5) knots if a 
higher minimum speed is necessary to maintain bare steerageway. The 
Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine 
channel 16 about the RNA.

[[Page 24850]]

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 
RNA 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 RNA lasting two months that will prohibit vessels from 
producing a wake or attaining speeds greater than five (5) knots unless 
a higher minimum speed is necessary to maintain bare steerageway. It is 
categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. A Record of Environmental 
Consideration for Categorically Excluded Actions 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.

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, and 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, 160.5; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.T01-0434 to read as follows:


Sec.  165.T01  0434 Regulated Navigation Area; East River, Brooklyn, 
NY.

    (a) Location. The following area is a regulated navigation area 
(RNA): All waters of the Manhattan half of the East River, south of a 
line drawn from (pa) 40[deg]44'07.5'' N., 073[deg]57'40.3'' W. (Dupont 
Street, Greenpoint, Brooklyn, NY) to 40[deg]44'10.1'' N., 
073[deg]58'21.6'' W. (NAD 83) (East 25th Street, Manhattan, NY) and 
north of a line drawn from the northwest corner of Pier 5 Brooklyn to 
the northeast corner of the Governors Island Ferry Manhattan Terminal.
    (b) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast Guard commissioned, warrant or petty officer of the U.S. 
Coast Guard who has been designated by the First District Commander or 
COTP to act on his or her behalf. A 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.
    (2) Official Patrol Vessels. Official patrol vessels may consist of 
any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement 
vessels assigned or approved by the COTP.
    (c) Enforcement Period. This RNA is effective and will be enforced 
from 4

[[Page 24851]]

p.m. on May 16, 2017, through 5 p.m. July 14, 2017.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.10, 165.11, and 165.13 as well as the following regulations, apply.
    (2) During periods of enforcement, all vessel movement within the 
RNA is subject to a ``Slow-No Wake'' speed limit. Vessels may not 
produce a wake nor not attain speeds greater than five (5) knots unless 
a higher minimum speed is necessary to maintain bare steerageway.
    (3) During periods of enforcement, upon being hailed by a U.S. 
Coast Guard vessel by siren, radio, flashing light, or other means, the 
operator of the vessel must proceed as directed.

    Dated: May 16, 2017.
S.D. Poulin,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2017-11212 Filed 5-30-17; 8:45 am]
 BILLING CODE 9110-04-P