[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Rules and Regulations]
[Pages 67568-67572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-27490]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2012-0950]
RIN 1625-AA11
Regulated Navigation Area; East River, Flushing and Gowanus Bays,
and Red Hook and Buttermilk Channels; New York, NY
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule and request for comments.
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SUMMARY: The Coast Guard is temporarily establishing a regulated
navigation area (RNA) comprising all waters between the New York City
Department of Sanitation Marine Transfer Stations (MTSs) on Gowanus Bay
and Flushing Bay. While the temporary interim rule is in effect, the
Coast Guard may restrict or prohibit vessel traffic within the RNA to
accommodate the load-out and transit of four gantry cranes that will
pose an imminent hazard to vessels operating in the area.
DATES: This rule is effective with actual notice for purposes of
enforcement from November 1, 2012 through November 30, 2012, and
effective in the Code of Federal Regulations from November 13, 2012
through November 30, 2012. Comments and related material must be
received by the Coast Guard on or before November 30, 2012. Requests
for public meetings must be received by the Coast Guard on or before
November 30, 2012.
ADDRESSES: Documents mentioned in this preamble are part of Docket
Number USCG-2012-0950. 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.
[[Page 67569]]
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
MTS New York City Department of Sanitation Marine Transfer Station
NPRM Notice of Proposed Rulemaking
RNA Regulated Navigation Area
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 regulations: mariners in or seeking to enter a defined area of the
Port of New York and New Jersey between November 1, 2012, and November
30, 2012. Each of these persons will be given actual notice of any
restrictions or prohibitions imposed on them by this rule. 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 with
respect to this rule because the Coast Guard received the specific
request to establish a no-wake zone around the load out and transits
from the contractor on September 6, 2012. There was insufficient time
and therefore it was impracticable to issue an NPRM and conduct a prior
notice and comment period. This rule is necessary to protect the safety
of both the gantry crane load out and transit crews and the waterway
users operating in the vicinity of the RNA. The proposed movement of
the gantry cranes creates a significant hazard for waterway users and
crane workers. Any delay or cancellation of the ongoing New York City
Department of Sanitation MTS facility upgrades would be contrary to the
public interest as it would delay necessary operations and increase
costs to the public. Additionally, the dynamic nature of the gantry
crane loading and transit operations necessitate that all mariners
navigate at a safe speed within the RNA, as the barge and gantry crane
and construction equipment at the two MTS facilities will change on a
daily basis. In order to address any further public concerns, this rule
is available for public comment until November 30, 2012.
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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. See 33 U.S.C. 1231 and Department
of Homeland Security Delegation No. 0170.1.
The offloading and transit of gantry cranes involves large
machinery and construction vessel operations above and in the navigable
waters of the Port of New York and New Jersey. The ongoing operations
are, by their nature, hazardous and pose risks both to recreational and
commercial traffic as well as the construction 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 construction workers for the duration of the gantry
crane load-outs and transits during the effective period. The RNA will
also protect vessels desiring to transit the area by ensuring that
vessels are only permitted to transit at No-wake speed.
D. Discussion of the Interim Rule
The New York City Department of Sanitation is upgrading Marine
Transfer Stations throughout the City to containerized operations. This
upgrade requires installation of gantry cranes at the Gowanus Bay and
Flushing Bay MTS facilities. Four gantry cranes will be delivered to
the Red Hook Container Terminal in Brooklyn, NY on Buttermilk Channel.
Two of these gantry cranes will be delivered by the Cheseapeake 1000 to
the Gowanus Bay MTS on Gowanus Bay, approximately 3.0 nautical miles to
the southeast. The other two gantry cranes will be offloaded onto
barges for transit and offloading to the Flushing Bay MTS on Flushing
Bay, approximately 13.0 nautical miles to the northeast.
The load out and transit of these gantry cranes involves large
machinery and construction vessel operations above and upon the
navigable waters between Gowanus Bay, Red Hook and Buttermilk Channels,
East River, and Flushing Bay. Heavy-lift operations are sensitive to
water movement, and wake from passing vessels could pose significant
risk of injury or death to construction workers. The ongoing operations
are, by their nature, hazardous and pose risks both to recreational and
commercial vessel traffic and the barge and load out crews. In order to
mitigate the inherent risks involved in the construction, it is
necessary to control vessel movement through the area.
This action is intended to restrict vessel traffic on a portion of
the waterways between Gowanus Bay and Flushing Bay in the Port of New
York and New Jersey while gantry cranes are loaded onto barges at Red
Hook Container Terminal on Buttermilk Channel and transit to the MTS
facilities on Gowanus and Flushing Bays.
These operations are tentatively scheduled to take place starting
on November 1, 2012 and lasting several days, but this rule will be
made effective through November 30, 2012 to account for any unforeseen
delays. Vessels will be required to transit at No Wake speed when
meeting or overtaking the vessels carrying these gantry cranes.
The Coast Guard will notify mariners of planned waterway transit
restrictions via Marine Information Broadcasts, Coast Guard Advisory
Notices, and at http://homeport.uscg.mil/newyork.
The Sector New York Captain of the Port 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, Coast Guard Advisory
Notices, and at http://homeport.uscg.mil/newyork.
E. Regulatory Analyses
We developed this 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 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 Gowanus Bay, Red Hook and
Buttermilk Channels, East River, and Flushing Bay 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 vessels to transit at No-wake speed when meeting or
over-taking the Chesapeake 1000 crane barge or other barges used to
carry the gantry cranes from the Red Hook Container Terminal to the
MTSs on Gowanus and Flushing Bays. The RNA will only be in effect for
approximately three hours for operations between Red Hook Container
Terminal and Gowanus Bay and for approximately seven hours between Red
Hook Container Terminal and Flushing Bay. Although the RNA would apply
to the entire width of the waterways, traffic would be allowed to pass
through the RNA at No Wake speed. Before the activation of the zone, we
will issue maritime advisories widely available to users of the port.
3. Assistance for Small Entities
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,
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.
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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 rule involves a regulated navigation area which
requires vessels to transit at No Wake speed. This 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 are 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.T01-0950 to read as follows:
Sec. 165.T01-0950 Regulated Navigation Area; East River, Flushing and
Gowanus Bays, and Red Hook and Buttermilk Channels; New York, NY.
(a) Regulated area. The following area is a regulated navigation
area: All navigable waters of the East River, Flushing and Gowanus
Bays, and Red Hook and Buttermilk Channels, between the New York City
Department of Sanitation Marine Transfer Station (MTS) at
40[deg]40[min]09.48[sec] N, 073[deg]59[min]55.75[sec] W (about 260
yards south of the Hamilton Avenue Bridge) on Gowanus Bay and the MTS
at 40[deg]46[min]11.00[sec] N, 073[deg]50[min]58.75[sec] W (about 270
yards south of the Cape Ruth) on Flushing Bay.
(b) Effective dates and enforcement periods. This rule is effective
and enforceable with actual notice from November 1, 2012 through
November 30, 2012.
(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 Captain of the Port Sector New York (COTP), 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
165.11, 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 past the Weeks Marine
and Witte Barges carrying the gantry cranes.
(3) During periods of enforcement, all persons and vessels given
permission to enter or operate in the regulated area must comply with
the instructions of the COTP or the designated representative. Upon
being hailed by an
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official patrol vessel by siren, radio, flashing light, or other means,
the operator of a vessel must proceed as directed.
(4) Vessel operators desiring to enter or operate within the
regulated area must contact the COTP or the designated representative
via VHF channel 16 or 718-354-4088 (Sector New York Vessel Traffic
Center) to obtain permission to do so.
Dated: October 26, 2012.
J.B. McPherson,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard
District.
[FR Doc. 2012-27490 Filed 11-9-12; 8:45 am]
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