
[Federal Register: July 1, 2009 (Volume 74, Number 125)]
[Rules and Regulations]               
[Page 31354-31356]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy09-5]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[Docket No. USCG-2009-0045]
RIN 1625-AA01

 
Anchorage Regulations; Port of New York

AGENCY: Coast Guard, DHS.

ACTION: Direct final rule; request for comments.

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SUMMARY: By this direct final rule, the Coast Guard is revising the 
southern boundary of Anchorage Ground No. 20-F in Upper New York Bay. 
This action is necessary so that the Anchorage Ground does not extend 
into the Port Jersey Federal Channel that is being expanded as part of 
the Port of New York/New Jersey Harbor Deepening Project. This action 
is intended to increase the safety of life and property for the Port of 
New York/New Jersey, improve the safety of anchored vessels, and 
provide for the overall safe and efficient flow of commercial vessels 
and commerce.

DATES: This rule is effective September 29, 2009, unless an adverse 
comment, or notice of intent to submit an adverse comment, is either 
submitted to our online docket via http://www.regulations.gov on or 
before August 31, 2009 or reaches the Docket Management Facility by 
that date. If an adverse comment, or notice of intent to submit an 
adverse comment, is received by August 31, 2009, we will withdraw this 
direct final rule and publish a timely notice of withdrawal in the 
Federal Register.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0045 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: 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.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, e-
mail or call Mr. Jeff Yunker, Waterways Management Division, telephone 
718-354-4195, e-mail jeff.m.yunker@uscg.mil. 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: 

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.
    Submitting comments:
    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0045), 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, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an e-mail address, or a phone 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, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2009-0045'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. 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 them 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.
    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, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0045 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. If you do not have 
access to the internet, you may also view the docket online by visiting 
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. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.
    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).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the docket using one of the methods specified under 
ADDRESSES. In your request, 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

[[Page 31355]]

and place announced by a later notice in the Federal Register.

Regulatory Information

    We are publishing this direct final rule under 33 CFR 1.05-55 
because we do not expect an adverse comment. If no adverse comment or 
notice of intent to submit an adverse comment is received by August 31, 
2009, this rule will become effective as stated in the DATES section. 
In that case, approximately 30 days before the effective date, we will 
publish a document in the Federal Register stating that no adverse 
comment was received and confirming that this rule will become 
effective as scheduled. However, if we receive an adverse comment or 
notice of intent to submit an adverse comment, we will publish a 
document in the Federal Register announcing the withdrawal of all or 
part of this direct final rule. If an adverse comment applies only to 
part of this rule (e.g., to an amendment, a paragraph, or a section) 
and it is possible to remove that part without defeating the purpose of 
this rule, we may adopt, as final, those parts of this rule on which no 
adverse comment was received. We will withdraw the part of this rule 
that was the subject of an adverse comment. If we decide to proceed 
with a rulemaking following receipt of an adverse comment, we will 
publish a separate notice of proposed rulemaking (NPRM) and provide a 
new opportunity for comment.
    A comment is considered ``adverse'' if the comment explains why 
this rule or a part of this rule would be inappropriate, including a 
challenge to its underlying premise or approach, or would be 
ineffective or unacceptable without a change.

Background

    This rule is necessary to ensure the safety of navigation for 
vessels operating in the area as well as for vessels involved with the 
Port Jersey Federal Channel deepening project. The current boundary of 
Anchorage Ground No. 20-F overlaps the expanded boundary of Port Jersey 
Federal Channel that is being deepened as part of the U.S. Army Corps 
of Engineers Port of New York/New Jersey harbor deepening project. 
Without the changes implemented by this rule, vessels could mistakenly 
anchor within the expanded Port Jersey Federal Channel while other 
vessels are dredging the channel in preparation for larger vessels with 
a deeper draft to moor at facilities adjacent to Port Jersey Federal 
Channel. Revising the southern boundary of Anchorage Ground No. 20-F to 
where it no longer interferes with the Port Jersey Federal Channel will 
remove the current authorization for vessels to mistakenly anchor 
within a Federal Channel, and therefore remove this hazardous condition 
for vessels navigating in this area.
    In addition to revising the southern boundary of the anchorage 
zone, the two geographic coordinates that make up the northern boundary 
are being updated to datum NAD 83. The physical location of these 
points are not moving, however there are slight changes in the 
coordinates that reflect the update in datum.

Discussion of the Rule

    This rule revises the southern boundary of Anchorage Ground No. 20-
F in Upper New York Bay by moving it northward, thus reducing the 
overall size of the anchorage. This change to the boundary is necessary 
because the adjacent Port Jersey Federal Channel is being expanded into 
the current Anchorage Ground No. 20-F boundary as part of the Port of 
New York/New Jersey harbor deepening project. The revised southern 
boundary would be moved to the north by approximately 130 yards. This 
rule further modifies the geographic coordinates of the two northern 
points of the anchorage so as to conform with datum NAD 83. The 
physical location of the two northern points do not change and there 
will be no resulting change in these two points on the current 
navigational charts, only the geographic position descriptions are 
revised based on the updated reference datum.

Regulatory Analysis

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    This determination is based on the fact that the expansion of the 
Port Jersey Federal Channel has already been approved through the U.S. 
Army Corps of Engineers permitting process. Due to the progress of this 
channel expansion, the southern area of this Anchorage Ground is no 
longer available for vessels to anchor within as vessels under contract 
to the U.S. Army Corps of Engineers have been, and continue to dredge 
in what is the south end of the current boundary of Anchorage Ground 
No. 20-F.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. 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.
    This rule will affect the following entities, some of which may be 
small entities: The owners and operators of vessels intending to anchor 
within the southern portion of Anchorage Ground No. 20-F.
    This rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons: Vessels 
will still be able anchor, or stem the tide, to the east of the two 
charted commercial mooring buoys located within the northern portion of 
Anchorage Ground No. 20-F. This revision is due to the Port of New 
York/New Jersey harbor deepening project that includes the expansion of 
the Port Jersey Federal Channel. This project has been well publicized 
to the maritime community through the Local Notice to Mariners, Coast 
Guard Homeport Web site at http://homeport.uscg.mil/newyork, monthly 
project update meetings held by the U.S. Army Corps of Engineers, and 
regularly scheduled Harbor Safety, Navigation and Operations Committee 
meetings.
    Therefore, 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. Comments submitted in response to this 
finding will be evaluated under the criteria in the ``Regulatory 
Information'' section of this preamble.

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 the rule so that they can better evaluate its 
effects on them and participate in the rulemaking. If the rule will 
affect your small business, organization, or governmental jurisdiction 
and you have questions concerning its provisions or options or 
compliance, please consult Mr. Jeff Yunker at the address listed under

[[Page 31356]]

ADDRESSES. 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.
    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).

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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 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.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

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.

Protection of Children

    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.

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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

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 concluded 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded under section 2.B.2, 
figure 2-1, paragraph (34)(f) of the Instruction. This rule involves 
the reduction in the size of an existing anchorage area. Under figure 
2-1, paragraph (34)(f) of the Instruction, an environmental analysis 
checklist and a categorical exclusion determination are not required 
for this rule.

List of Subjects in 33 CFR Part 110

    Anchorage grounds.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 110 as follows:

PART 110--ANCHORAGE REGULATIONS

0
1. The authority citation for part 110 continues to read as follows:

    Authority:  33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 
33 CFR 1.05-1; Department of Homeland Security Delegation No. 
0170.1.


0
2. Amend Sec.  110.155, by revising paragraph (d)(7) to read as 
follows:


Sec.  110.155  Port of New York.

* * * * *
    (d) * * *
    (7) Anchorage No. 20-F. All waters bound by the following points: 
40[deg]40'12.2'' N, 074[deg]03'39.9'' W; thence to 40[deg]39'53.9'' N, 
074[deg]03'09.6'' W; thence to 40[deg]39'38.9'' N, 074[deg]03'19.5'' W; 
thence to 40[deg]39'53.5'' N, 074[deg]03'53.7'' W; thence to the point 
of origin (NAD 83).
    (i) See 33 CFR 110.155 (d)(9), (d)(16), and (l).
    (ii) [Reserved]
* * * * *

    Dated: May 28, 2009.
Dale G. Gabel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-15603 Filed 6-30-09; 8:45 am]

BILLING CODE 4910-15-P
