
[Federal Register Volume 79, Number 71 (Monday, April 14, 2014)]
[Rules and Regulations]
[Pages 20786-20789]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08218]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0727]
RIN 1625-AA11


Regulated Navigation Area; Arthur Kill, NY and NJ

AGENCY: Coast Guard, DHS.

[[Page 20787]]


ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is extending the Regulated Navigation Area 
promulgated for the navigable waters of the Arthur Kill in New York and 
New Jersey. This rule extends the Regulated Navigation Area until June 
1, 2014, due to project delays.

DATES: This rule is effective without actual notice from April 14, 2014 
until June 1, 2014. For the purposes of enforcement, actual notice will 
be used from the date the rule was signed, March 31, 2014, until June 
1, 2014. Public comments will be accepted and reviewed by the Coast 
Guard through June 1, 2014.

ADDRESSES: Documents mentioned in this preamble are part of Docket 
Number USCG-2011-0727. 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. 
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 Chief Craig D. Lapiejko, Coast Guard First District 
Waterways Management Branch, telephone 617-223-8385, email 
craig.d.lapiejko@uscg.mil or, Mr. Jeff Yunker, U.S. Coast Guard Sector 
New York Waterways Management Division, Coast Guard; telephone 718-354-
4195, email Jeff.M.Yunker@uscg.mil. If you have questions on viewing 
the docket, call Barbara Hairston, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
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.
    The Coast Guard will evaluate and revise this rule as necessary to 
address significant public comments. Alternatively, if the dredging 
project necessitating the interim rule is completed before June 1, 
2014, and we receive no public comments that indicate a substantive 
need to revise the rule, we may allow it to expire on that date without 
further regulatory action.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-0727), 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 (via 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 via www.regulations.gov, 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 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 (USCG-2013-0329) 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 currently do not plan to hold a public meeting. You may, 
however, 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 in 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

    This temporary interim rule (TIR) is the third to address the RNA 
in the Arthur Kill. We first published this regulated navigation area 
on August 23, 2011 (75 FR 52569) and amended it amended it on January 
9, 2012 (76 FR 1023). No comments have been received on the rules that 
have addressed this topic.
    The Coast Guard is issuing this temporary interim rule without 
prior notice and opportunity to comment

[[Page 20788]]

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 publishing an NPRM would be impracticable, as it 
is necessary to protect the safety of both the construction crew and 
the waterway users operating in the vicinity of the Arthur Kill. A 
delay or cancellation of the currently ongoing project in order to 
accommodate a full notice and comment period would delay necessary 
operations, result in increased costs, and delay the date when the 
channel is expected to reopen for normal operations. The Coast Guard 
will consider comments in issuing a subsequent temporary interim rule 
or temporary final rule which allows further time to complete channel 
work needed in the RNA without interruption.
    For the same reasons mentioned above, under 5 U.S.C. 553(d)(3), the 
Coast Guard finds that good cause exists for making this rule effective 
less than 30 days after publication in the Federal Register.

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 purpose of this rule is to ensure the safe transit of vessels 
in the area and to protect all persons, vessels, and the marine 
environment during the ongoing channel deepening project by extending 
the effective date of this rule.

D. Discussion of Comments and Changes

    The completion date for this project needs to be extended due to 
additional work being conducted near the center of the channel. As such 
we are extending the effective from April until June to allow adequate 
time for the completion of the project.

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.
    The Coast Guard determined that this rulemaking will not be a 
significant regulatory action for the following reasons: Vessel traffic 
will only be restricted from the RNA for limited durations and the RNA 
covers only a small portion of the navigable waterway. Advanced public 
notifications will also be made to local mariners through appropriate 
means, which could include, but would not be limited to, Local Notice 
to Mariners and Broadcast Notice to Mariners.

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 enter 
or transit within the RNA during a vessel restriction period.
    The RNA would not have a significant economic impact on a 
substantial number of small entities for the following reasons: The RNA 
would be of limited size and any waterway closure of short duration. 
Additionally before the effective period of a waterway closure, 
advanced public notifications will be made to local mariners through 
appropriate means, which could include, but would not be limited to, 
Local Notice to Mariners and Broadcast Notice to Mariners.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would 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.

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.

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 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.

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

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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 restricting vessel movement within a 
regulated navigation area. This rule is categorically excluded from 
further review under paragraph 34(g) of Figure 2-1 of the Commandant 
Instruction. An environmental analysis checklist and a categorical 
exclusion determination supporting this 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. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 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.T01-0727 to read as follows:


Sec.  165.T01-0727  Regulated Navigation Area; Arthur Kill, NY and NJ.

    (a) Regulated Area. The following area is a regulated navigation 
area: All waters of the North of Shooters Island Reach, Elizabethport 
Reach, and Gulfport Reach in the Arthur Kill; bounded in the northeast 
by a line drawn from position 40[deg]38'48.637'' N, 074[deg]09'18.204'' 
W; to a point in position 40[deg]38'37.815'' N, 074[deg]09'20.245'' W; 
and bounded in the southwest by a line drawn from position 
40[deg]37'15.643'' N, 074[deg]12'15.927'' W; to a point in position 
40[deg]37'15.779'' N, 074[deg]12'08.0622'' W. All geographic 
coordinates are North American Datum of 1983 (NAD 83).
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.13 apply.
    (2) All vessels must remain at least 150 feet from all drilling and 
blasting equipment; if a vessel must pass within 150 feet of drilling 
and blasting equipment for reasons of safety, they shall contact the 
dredge and/or blasting barge on Channel 13.
    (3) No vessel shall enter or transit any work area where drill 
barges and/or dredges are located without the permission of Vessel 
Traffic Service New York (VTSNY) Director.
    (4) No vessel may be underway within 1,500 feet of the blasting 
area during blasting operations.
    (5) No vessel shall enter an area of drilling or blasting when they 
are advised by the drilling barge or VTSNY that a misfire or hang fire 
has occurred.
    (6) Vessel Movement Reporting System (VMRS) users are prohibited 
from meeting or overtaking other vessels when transiting alongside an 
active work area where dredging and drilling equipment are being 
operated.
    (7) Each vessel transiting in the vicinity of a work area where 
dredges are located is required to do so at reduced speed to maintain 
maneuverability while minimizing the effects of wake and surge.
    (8) The VTSNY Director may impose additional requirements through 
VTS measures, as per 33 CFR 161.11.
    (c) Effective Period. This rule is effective from 8 a.m. on March 
31, 2014 until 5 p.m. on June 1, 2014.

    Dated: March 31, 2014.
D.B. Abel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2014-08218 Filed 4-11-14; 8:45 am]
BILLING CODE 9110-04-P


