[Federal Register Volume 82, Number 105 (Friday, June 2, 2017)]
[Rules and Regulations]
[Pages 25517-25519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11463]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0401]
RIN 1625-AA00


Safety Zone; East River and Buttermilk Channel, Brooklyn, 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 the Brooklyn half of the East River, 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 safety zone is needed to 
protect personnel, vessels, and the marine environment from potential 
hazards associated with a dielectric oil spill response and shoreside 
repair operations. 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 June 2, 2017 
through 5 p.m. on July 14, 2017. For the purposes of enforcement, 
actual notice will be used from 4 p.m. on May 8, 2017 June 2, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0401 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, 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
PCB Polychlorinated Biphenyl
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 it would be 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 and shoreside 
repair efforts.
    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 COTP has determined that the emergency pollution response 
activities pose hazards to the boating public within the Brooklyn, NY 
half of the East River and Buttermilk Channel. The COTP has determined 
that this rule is necessary to protect the public from these hazards.

IV. Discussion of the Rule

    This rule establishes a safety zone from 4 p.m. on May 8, 2017 
through 5 p.m. on July 14, 2017. The safety zone will cover all 
navigable waters of the Brooklyn, NY half of the East River and 
Buttermilk Channel. The duration of the zone is intended to protect 
personnel, vessels, and the marine environment in these navigable 
waters while the dielectric fluid is being recovered and necessary 
shoreside repair operations are ongoing. No person or vessel will be 
permitted to enter the safety zone unless obtaining permission from the 
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

[[Page 25518]]

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 safety zone. Vessel traffic will be able 
to safely transit around this safety zone which will impact a small 
designated area of the East River and Buttermilk Channel for 
approximately two months. 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 
if the response activities are completed in less than two months.

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 
recreational 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 the establishment of a safety zone for up to two months. 
Therefore, it is 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 is 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.T01-0401 to read as follows:


Sec.  165.T01-0401  Safety Zone; East River and Buttermilk Channel, NY.

    (a) Location. The following area is a safety zone: All waters of 
the Brooklyn 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 Buttermilk Channel, north of the 
Buttermilk Channel Entrance Lighted Gong Buoy 1 (LLNR 36985).
    (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 COTP to act on his or her 
behalf. A designated

[[Page 25519]]

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 safety zone is effective and will be 
enforced from 4 p.m. on May 8, 2017 through 5 p.m. on July 14, 2017.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.23, as well as the following regulations, apply.
    (2) During periods of enforcement, no vessel shall enter the safety 
zone unless permitted by the COTP or a designated representative. Any 
person or vessel allowed to enter the safety zone must comply with all 
orders and directions from the COTP or a COTP's designated 
representative while said person or vessel is within the safety zone.
    (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 8, 2017.
Michael H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2017-11463 Filed 6-1-17; 8:45 am]
 BILLING CODE 9110-04-P