
[Federal Register Volume 77, Number 219 (Tuesday, November 13, 2012)]
[Rules and Regulations]
[Pages 67568-67572]
From the Federal Register Online via the Government Printing 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 
Jeff.M.Yunker@uscg.mil or Lieutenant Isaac Slavitt, First Coast Guard 
District Waterways Management Division, Boston, MA, telephone (617) 
223-8385, email Isaac.M.Slavitt@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:

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.

[[Page 67570]]

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

[[Page 67572]]

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]
BILLING CODE 9110-04-P


