The Coast Guard is establishing a temporary Regulated Navigation Area (RNA) encompassing all waters of the Sector New York and Captain of the Port (COTP) New York Zone south of the George Washington Bridge at mile 11.0 on the Hudson River and west of the Hell Gate Railroad bridge at mile 8.2 on the East River. This action is necessary to prevent maritime traffic from interfering with spilled oil recovery operations, removal of sunken recreational vessels, debris, and cargo containers, and to ensure the safety of the response crews on scene. It will do so by prohibiting vessels from entering or remaining in the RNA unless authorized by the COTP or his Designated Representative.
This rule is effective with actual notice for purposes of enforcement from November 9, 2012 through February 1, 2013, and effective in the Code of Federal Regulations from November 21, 2012 through February 1, 2013. Comments and related material must be received by the Coast Guard on or before December 7, 2012. Requests for public meetings must be received by the Coast Guard on or before December 7, 2012.
ADDRESSES: Documents mentioned in this preamble are part of Docket
Number USCG-2012-1009. 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 Mr. Jeff Yunker, Waterways Management Division at Coast Guard Sector New York, telephone (718) 354-4195, emailJeff.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.
Table of Acronyms
APA Administrative Procedure Act
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
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
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 regulation: All mariners in or seeking to enter a defined area of
the Sector New York and COTP New York zone between November 9, 2012,
and February 1, 2013. 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 (NPRM) with respect to this
rule because publishing a NPRM would be contrary to public interest
action is necessary to protect vessels, persons, port infrastructure,
and salvage crews in the Port of New York and New Jersey from hazards
created by multiple oil spill recovery operations, debris, cargo
container, and recreational vessel salvage and retrieval operations.
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. Normal notice and comment
procedures cannot be followed due to the immediate threat of collision
and/or exposure to hazardous pollutants posed by the sunken containers,
vessels, and other floating debris and associated pollution response
and recovery operations associated with the post-storm recovery from
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.
The oil pollution response and recovery operations of sunken
vessels, cargo containers, and debris involves large machinery and
construction vessel operations above and in the navigable waters of the
Port of New York and New Jersey pose hazards to waterway users. The
ongoing operations are, by their nature, hazardous and pose risks both
to recreational and commercial traffic as well as the response and
recovery crews. In order to mitigate the inherent risks involved in
these operations, it is necessary to control vessel movement through
The purpose of this rule is to ensure the safety of waterway users,
the public, and pollution response and recovery workers for the
duration of the response and recovery operations during the effective
period. The RNA will also protect recovery vessels desiring to transit
the Arthur Kill by ensuring that vessels are only permitted to transit
at no-wake speed.
D. Discussion of the Interim Rule
The Coast Guard is establishing a temporary RNA encompassing all
waters of the Sector New York and COTP zone, codified at 33 CFR 3.05-
30, south of the George Washington Bridge at mile 11.0 on the Hudson
River and west of the Hell Gate Railroad Bridge at mile 8.2 on the East
River. This temporary RNA was necessitated by Hurricane Sandy, which
struck the New York City area in late October 2012 and which caused
damage requiring immediate cleanup efforts.
The COTP New York is enforcing a RNA in the vicinity of current oil
spill response and debris recovery operations due to post Hurricane
Sandy conditions. The recovery of spilled oil, debris, vessels, and
cargo containers involves large machinery and construction vessel
operations above and upon the navigable waters of the Port of New York
and New Jersey. These operations are sensitive to water movement, and
wake from passing vessels could pose significant risk of injury or
death to response and recovery workers. Certain portions of the
waterway within the RNA must be closed to vessel traffic due to the
quantity of sunken vessels and or floating debris. The ongoing recovery
operations are, by their nature, hazardous and pose risks to all vessel
traffic. In order to mitigate the inherent risks involved in the
operations, it is necessary to control vessel movement through the
This action is intended to restrict vessel traffic on the Arthur
Kill, Buttermilk Channel, Great Kills Harbor north of (pa) 40-32-
01.290N, 074-08-30.895W (Great Kills Harbor Channel Buoy 9 LLNR 35488)
and (pa) 40-32-02.854N, 074-08-28.532W (Great Kills Harbor Channel Buoy
10 LLNR 35490), Sheepshead Bay west of (pa) 40-34-53.198N, 073-55-
51.984W (Sheepshead Bay Lighted Buoy 12 LLNR 34370), and Jamaica Bay
east of the Gil Hodges Memorial/Marine Parkway Bridge at mile 3.0.
Vessels may be restricted from additional areas as necessary due to the
dynamic nature of this response and recovery operation.
These operations are tentatively scheduled to take place starting
on November 9, 2012 and lasting through February 1, 2013. Vessels
required to participate in the Vessel Movement Reporting System
codified at 33 CFR 161 Subpart B are required to transit the Arthur
Kill at No Wake speed.
The COTP 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, Local Notice to Mariners, and at http://homeport.uscg.mil/newyork.
E. Regulatory Analyses
We developed this temporary 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 temporary 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 Sector
New York and COTP New York zone 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 authorized vessels to transit at no-wake speed when
transiting the Arthur Kill. Vessels can transit through Anchorage
Channel and the East River to bypass Buttermilk Channel. Great Kills
Harbor and Sheepshead Bay are already effectively closed due to the
quantity of sunken vessels and debris in the waterways. Also, due to
the extent of continuing debris reports received by the U.S. Coast
Guard and U.S. Army Corps of Engineers (USACE), the COTP has determined
that the local waters are not safe for recreational vessel transits
after daylight hours and Arthur Kill, Buttermilk Channel, Great Kills
Harbor north of (pa) 40-32-01.290N, 074-08-30.895W (Great Kills Harbor
Channel Buoy 9 LLNR 35488) and (pa) 40-32-02.854N, 074-08-28.532W
(Great Kills Harbor Channel Buoy 10 LLNR 35490), Sheepshead Bay west of
(pa) 40-34-53.198N, 073-55-51.984W (Sheepshead Bay Lighted Buoy 12 LLNR
34370), and Jamaica Bay east of the Gil Hodges Memorial/Marine Parkway
Bridge at mile 3.0 are not safe for recreational vessel transits at any
time. The RNA will only be in effect until response and recovery
operations are complete. Portions of the RNA will be opened to vessel
traffic as soon as the COTP New
York deems it safe to do so. We will issue maritime advisories widely
available to users of the port updating the status and locations of all
waters restricted to vessel transits as they become available.
3. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 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,
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).
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
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.
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 temporary rule involves a RNA which requires vessels
to transit at No Wake speed and restricts some areas to vessel transits
during Hurricane Sandy response and recovery operations. This temporary
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 will be 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
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.
2. Add Sec. 165.T01-1009 to read as follows:
Sec. 165.T01-1009 Safety Zone; Recovery Operations, the Port of New
York and New Jersey, NJ and NY.
(a) Regulated Navigation Area. The following area is a Regulated
Navigation Area (RNA): All navigable waters of the Sector New York and
Captain of the Port (COTP) Zone defined in 33 CFR 3.05-30, south of the
George Washington Bridge at mile 11.0 on the Hudson River and west of
the Hell Gate Railroad Bridge at mile 8.2 on the East River.
(b) Effective dates and enforcement periods. This rule is effective
and will be enforced with actual notice from
November 9, 2012 through February 1, 2013, except that enforcement may
be suspended in accordance with paragraph (d)(8) of this section.
(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 COTP Sector New York, 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
165.13, 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 the Arthur Kill.
(3) During periods of enforcement, all persons and vessels given
permission to enter or operate in the RNA must comply with the
instructions of the COTP or the designated representative. Upon being
hailed by an official patrol vessel by siren, radio, flashing light, or
other means, the operator of a vessel must proceed as directed.
(4) During periods of enforcement, no vessels are authorized to
transit or operate within Buttermilk Channel, within Great Kills Harbor
north of (pa) 40-32-01.290N, 074-08-30.895W (Great Kills Harbor Channel
Buoy 9 LLNR 35488) and (pa) 40-32-02.854N, 074-08-28.532W (Great Kills
Harbor Channel Buoy 10 LLNR 35490), within Sheepshead Bay west of (pa)
40-34-53.198N, 073-55-51.984W (Sheepshead Bay Lighted Buoy 12 LLNR
34370), and within Jamaica Bay east of the Gil Hodges Memorial/Marine
Parkway Bridge at mile 3.0.
(5) Vessel operators required to participate in the Vessel Movement
Reporting System codified at 33 CFR part 161, subpart B, and desiring
to enter or operate within the RNA must contact the COTP or the
designated representative via VHF channel 11 or 16 or 718-354-4088
(Sector New York Vessel Traffic Center) to obtain permission to do so.
(6) Recreational vessel operators desiring to enter or operate
within the RNA must contact the COTP or the designated representative
via VHF channel 16 or 718-354-4353 (Sector New York Command Center) to
obtain permission to do so, and will be permitted to enter or operate
within the RNA only during daylight hours.
(7) The COTP may impose additional requirements within the RNA due
to unforeseen changes to the response and recovery operations.
(8) The COTP will make notice of specific waterway closures and
restrictions, and of any suspension of enforcement, by all means
available to affect the widest public distribution including, but not
limited to, Marine Information Broadcasts, Local Notice to Mariners,
and at http://homeport.uscg.mil/newyork.
Dated: November 9, 2012.
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2012-28272 Filed 11-20-12; 8:45 am]
BILLING CODE 9110-04-P