
[Federal Register Volume 76, Number 104 (Tuesday, May 31, 2011)]
[Rules and Regulations]
[Pages 31233-31235]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13325]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-1091]
RIN 1625-AA00


Safety Zone; Underwater Hazard, Gravesend Bay, Brooklyn, NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a permanent safety zone within 
the waters of Gravesend Bay, Brooklyn, New York. This safety zone is 
necessary to provide for the protection of the maritime public and 
safety of navigation from recently discovered underwater explosive 
hazards in Gravesend Bay. This action will restrict unauthorized 
persons and vessels from traveling through or conducting underwater 
activities within a portion of Gravesend Bay until recently discovered 
military munitions are rendered safe and removed from the area. Entry 
into this zone is prohibited unless authorized by the Captain of the 
Port (COTP) New York or the designated on-scene representative.

DATES: This rule is effective on June 30, 2011.

ADDRESSES: Comments and material received from the public, as well as 
documents mentioned in this preamble as being available in the docket, 
are part of docket USCG-2010-1091 and are available online by going to 
http://www.regulations.gov, inserting USCG-2010-1091 in the ``Keyword'' 
box, and then clicking ``Search.'' This material is also available for 
inspection or copying at the 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, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail LTJG Eunice James, Coast Guard; telephone (718) 354-
4163, e-mail Eunice.A.James@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:

Regulatory Information

    On February 8, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled ``Safety Zone; Underwater Hazard, Gravesend Bay, 
Brooklyn, NY'' in the Federal Register (76 FR 6728). We received no 
comments on the proposed rule. A public meeting was not requested and 
none was held.

Basis and Purpose

    In response to media reports of military munitions found in 
Gravesend Bay by civilian divers, U.S. Navy Explosive Ordnance Disposal 
divers from Naval Weapons Station Earle conducted underwater surveys 
and confirmed the location of munitions on the bottom of Gravesend Bay. 
The munitions consist of approximately 1500 rounds of 20mm ammunition, 
one 3-inch diameter projectile and two cartridge casings. The (COTP) 
New York has established a temporary safety zone under docket number 
USCG-2010-1126 as an interim measure while this long-term rulemaking 
process is pursued.
    In the interest of public safety, the U.S. Navy has requested that 
the Coast Guard limit access to the location in Gravesend Bay where the 
munitions are located until the ordnance can be rendered safe and 
removed.
    This safety zone is necessary to ensure the safety of mariners, 
vessels, and civilian divers from the potential hazards associated with 
unexploded military munitions.

Background

    The COTP New York is establishing a safety zone around the location 
of an unexploded munitions site to ensure the safety of mariners and 
vessels transiting near the location of the ordnance as well as divers 
intending to dive in the area.
    The safety zone encompasses all waters of Gravesend Bay within 110-
yard radius of position 40[deg]36'30'' N, 074[deg]02'14'' W (NAD 83), 
approximately 70-yards southeast of the Verrazano Bridge Brooklyn 
tower.
    Entry into the safety zone by any person or vessel will be 
prohibited unless specifically authorized by the COTP New York, or the 
designated on-scene representative. Persons desiring to enter the 
safety zone may request permission to enter from the Coast Guard COTP 
via VHF Channel 16 or by contacting the Sector New York Command Center 
at (718) 354-4353.
    The Coast Guard advises that entry into, transiting, diving, 
dredging, dumping, fishing, trawling, conducting salvage operations, 
remaining within or anchoring in this safety zone is prohibited unless 
authorized by the COTP New York or the designated on-scene 
representative.
    The ``designated on-scene representative'' is any Coast Guard 
commissioned, warrant, or petty officer who has been designated by the 
COTP New York to act on her behalf.

Discussion of Comments and Changes

    The Coast Guard received no comments on the proposed rulemaking. No 
changes were made to the final rule.

Regulatory Analyses

    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.

Executive Order 12866 and Executive Order 13563

    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, 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.

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.
    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 entering 
into, transiting through, diving, dredging, dumping, fishing, trawling, 
conducting salvage operations, remaining within or anchoring in a 
portion of Gravesend Bay.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons. This 
safety zone will limit access to a relatively small portion of the 
waterway. Vessel traffic can safely transit around the safety zone. 
Before the activation of the zone, we will issue maritime advisories 
widely available to users of the waterway in the vicinity of Gravesend 
Bay.
    If you think that your business, organization, or governmental

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jurisdiction qualifies as a small entity and that this rule will have a 
significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process.
    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.

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 (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.

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.

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 
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 is categorically excluded, under figure 2-1, paragraph (34)(g), of 
the Instruction. This rule involves the establishment of a safety zone 
to restrict unauthorized persons and vessels from entering into, 
transiting through, diving, dredging, dumping, fishing, trawling, 
conducting salvage operations, remaining within or anchoring within a 
portion of Gravesend Bay until recently discovered military munitions 
are rendered safe and removed from the area.
    An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

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. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; Pub. L. 107-295, 116 Stat. 2064; 
Department of Homeland Security Delegation No. 0170.1.


0
2. Add Sec.  165.172 to read as follows:


Sec.  165.172  Safety Zone; Underwater Hazard, Gravesend Bay, Brooklyn, 
NY.

    (a) Location. The following area is a safety zone: All navigable 
waters of Gravesend Bay within a 110-yard radius

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of a point in position 40[deg]36'30'' N, 074[deg]02'14'' W (NAD 83), 
approximately 70-yards southeast of the Verrazano Bridge Brooklyn 
tower.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply.
    (2) Entering into, transiting through, diving, dredging, dumping, 
fishing, trawling, conducting salvage operations, remaining within or 
anchoring within this safety zone is prohibited unless authorized by 
the Captain of the Port (COTP) New York or the designated on-scene 
representative.
    (3) The ``designated on-scene representative'' is any Coast Guard 
commissioned, warrant, or petty officer who has been designated by the 
COTP New York.
    (4) Vessel operators desiring to enter or operate within the safety 
zone may contact the COTP New York or the designated representative at 
the Coast Guard Sector New York Command Center via VHF Channel 16 or by 
phone at (718) 354-4353 to request permission.
    (5) Vessel operators given permission to enter or operate in the 
safety zone must comply with all directions given to them by the COTP 
New York or the on-scene representative.

    Dated: May 11, 2011.
L.L. Fagan,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2011-13325 Filed 5-27-11; 8:45 am]
BILLING CODE 9110-04-P


