[Federal Register: July 16, 2003 (Volume 68, Number 136)]
[Proposed Rules]
[Page 41984-41987]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jy03-36]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-03-066]
RIN 1625-AE84
Regulated Navigation Area; Arthur Kill, NY and NJ
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to establish a Regulated Navigation
Area (RNA) to impose restrictions on vessels transiting to the North of
Shooters Island Reach, Elizabethport Reach, and Gulfport Reach of the
Arthur Kill during U.S. Army Corps of Engineers dredging operations in
those areas. This action is necessary to provide for the safety of life
and property on navigable waters during Army Corps of Engineers and
Port Authority of New York/New Jersey dredging operations that impinge
upon the navigable portion of the channel and require the temporary
relocation of navigational aids. This action is intended to reduce the
risks of collisions, groundings and other navigational mishaps.
DATES: Comments and related material must reach the Coast Guard on or
before August 15, 2003.
ADDRESSES: You may mail comments and related material to Waterways
Oversight Branch (CGD01-03-066), Coast Guard Activities New York, 212
Coast Guard Drive, room 204, Staten Island, New York 10305. The
Waterways Oversight Branch of Coast Guard Activities New York maintains
the public docket for this rulemaking. Comments and material received
from the public, as well as documents indicated in this preamble as
being available in the docket, will become part of this docket and will
be available for inspection or copying at room 204, Coast Guard
Activities New York, between 8 a.m. and 3 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Commander E. Morton,
Waterways Oversight Branch, Coast Guard Activities New York at (718)
354-4012.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (CGD01-03-
066), indicate the specific section of this document to which each
comment applies, and give the reason for each comment. Please submit
all comments and related material in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying. If you would like to know
they reached us, please enclose a stamped, self-addressed postcard or
envelope. We will consider all comments and material received during
the comment period. We may change this proposed rule in view of them.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for a meeting by writing to the Waterways Oversight Branch at
the address under ADDRESSES explaining why one 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.
Background and Purpose
The Arthur Kill Channel is the proposed area to be designated as an
RNA. This channel is located in the waters between Elizabeth, NJ and
Staten Island, NY. The proposed RNA would enhance vessel safety during
the extensive channel-deepening project being undertaken by the U.S.
Army Corps of Engineers, which involves dredging and blasting in these
areas. Current channel depths restrict the full economy of existing and
future generations of deep draft vessels. Tankships arriving in the
port with drafts approaching the 45 foot controlling depths of Ambrose
and Anchorage Channels must lighter some of their cargo to barges in
the deep New York Harbor Anchorage Grounds in order to safely transit
the 35 foot Arthur Kill. This results in substantial lightering and
delay costs.
Container vessels cannot lighter in the Anchorage Grounds and
therefore must load to less than full drafts. This project, which is
expected to last approximately five years, will deepen the existing 35-
foot channels to 41 feet to accommodate deeper draft vessels. The
dredging areas will continue to be available for use by the general
public.
Proposed restrictions on vessel transits during this project are as
follows: (1) No vessel shall enter or transit any work area where drill
barges and/or dredges are located without permission of Vessel Traffic
Service New York (VTSNY). One-way traffic will be maintained during
this project in the active work areas. Permission to transit the work
area will normally not be given during blasting operations.
(2) Each vessel transiting in the vicinity of the work areas, where
drill barges and/or dredges are located, is required to do so at ``no
wake'' speed.
(3) No vessel shall enter the RNA when they are advised by the
drilling barge or VTSNY that a misfire or hangfire has occurred.
Vessels already underway in the RNA shall proceed to clear the impacted
area immediately.
(4) Vessel Movement Reporting System users are prohibited from
meeting or overtaking other vessels when transiting alongside an active
work area.
(5) Vessel Movement Reporting System users transiting with the
prevailing current (as measured from the Bergen Point current station)
are regarded as the stand-on vessel.
(6) Prior to entering the RNA, the master, pilot or operator of
each Vessel Movement Reporting System user shall ensure that they have
sufficient propulsion and directional control to safely navigate the
area under the prevailing conditions, and shall notify VTSNY as to
their decision regarding the employment of assist tugs while transiting
the RNA.
(7) Waiver. The Captain of the Port New York may, upon request,
authorize a deviation from any regulation in this section if it is
found that the proposed operations can be done safely. An application
for deviation must be received not less than 24 hours before the
intended operation and must state the need and describe the proposal.
(8) Tugs with tows includes a tug with a vessel or barge in tow,
alongside, or being pushed.
(9) Tug requirements. All vessels 350 feet in length, or greater,
excluding tugs with tows, require one assist tug. All vessels 700 feet
in length, or greater, excluding tugs with tows, require a minimum of
two assist tugs. All vessels 900 feet in length, or greater, excluding
tugs with tows, require a minimum of three assist tugs.
(10) Tidal current restrictions. Vessels 700 feet in length, or
greater, are restricted to movements within one hour before or after
slack water, as measured from the Bergen Point current station.
(11) Astern tows. Hawser tows are not permitted unless an assist
tug accompanies the tow.
[[Page 41985]]
(12) When sustained winds are greater than 20 knots, as measured at
the Bayonne Bridge meteorological sensor, vessels are prohibited from
backing out of the Howland Hook Marine Terminal.
(13) Sustained winds from 20 to 34 knots. In sustained winds from
20 to 34 knots: (i) Cargo ships and tankers in ballast may not transit
the RNA; (ii) tugs pushing or towing alongside tank barges 350 feet in
length, or greater, in light condition, require an assist tug in the
RNA.
(14) Sustained winds greater than 34 knots. In sustained winds
greater than 34 knots, vessels 300 gross tons or greater and all tugs
with tows are prohibited from transiting the RNA.
(15) When visibility is less than one nautical mile the entire work
zone is closed to vessels over 350 feet in length and all tugs with
tows.
(16) The Vessel Traffic Service New York Director may impose
additional requirements through VTS measures, as per 33 CFR 161.11,
when the dredge is working in the most restricted areas of the
waterway.
This proposed rulemaking is needed to reduce the risks of
collisions, groundings, and other navigational mishaps associated with
this project. These proposed restrictions are similar to those
currently in place to the east of the proposed RNA for the ongoing Kill
Van Kull RNA codified at 33 CFR 165.165. They were originally
instituted during 1991-1992 when dredging was last conducted in this
vicinity. They were instituted at that time in response to three
groundings that resulted in one oil spill and one channel blockage.
Public notifications for specific dredging dates and dredging areas
within the RNA will be made prior to the commencement of dredging via
the Local Notice to Mariners, marine information and facsimile
broadcasts, at New York Harbor Operations Committee meetings and on the
internet at: http://www.harborops.com.
The proposed regulation would become effective on Monday, September
1, 2003.
Discussion of Proposed Rule
The proposed RNA encompasses all waters of the North of Shooters
Island Reach, Elizabethport Reach, and Gulfport Reach in the Arthur
Kill. This proposed rule is necessary to safeguard marine traffic from
the dangers of the dredging and blasting work proposed in the project
area.
Regulatory Evaluation
This proposed 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. It is not ``significant''
under the regulatory policies and procedures of the Department of
Homeland Security (DHS).
We expect the economic impact of this proposed rule to be so
minimal that a full Regulatory Evaluation under the regulatory policies
and procedures of DHS is unnecessary.
This finding is based on the following reasons: Vessels will be
allowed to transit work areas where dredges and/or drill barges are
located unless blasting is to be conducted; delays resulting from
blasting are expected to last no longer than 15 minutes and occur less
than 7 times daily in any one area; there are no restrictions on vessel
traffic in the RNA in areas where there are no dredges or drill barges;
the Port Authority of New York/New Jersey is working with the Army
Corps of Engineers on this project to ensure future generations of deep
draft vessels are able to use the Port of NY/NJ; it will reduce
substantial costs associated with lightering operations currently
required by vessels unable to transit the harbor fully loaded, and
advance notifications will be made to the local maritime community by
the Local Notice to Mariners, marine information and facsimile
broadcast, at New York Harbor Operations Committee meetings and on the
internet at http://www.harborops.com.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed 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 proposed
rule would not have a significant economic impact on a substantial
number of small entities.
This proposed rule would affect the following entities, some of
which might be small entities: The owners or operators of vessels
intending to transit a portion of the North of Shooters Island Reach,
Elizabethport Reach, or Gulfport Reach of the Arthur Kill during the
time this RNA is effective.
This RNA would not have a significant economic impact on a
substantial number of small entities for the following reasons: Vessels
will be allowed to transit work areas where dredges and/or drill barges
are located unless blasting is to be conducted; delays resulting from
blasting are expected to last no longer than 15 minutes and occur less
than 7 times daily in any one area; there are no restrictions on vessel
traffic in the RNA in areas where there are no dredges or drill barges;
the Port Authority of New York/New Jersey is working with the Army
Corps of Engineers on this project to ensure future generations of deep
draft vessels are able to use the Port of NY/NJ; and it will reduce
substantial costs associated with lightering operations currently
required by vessels unable to transit the harbor fully loaded. Before
the effective date we will ensure wide dissemination of maritime
advisories widely available to users of the Arthur Kill by the Local
Notice to Mariners, marine information and facsimile broadcast, at New
York Harbor Operations Committee meetings, and on the internet at
http://www.harborops.com.
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.
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 proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. 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 Lieutenant Commander E. Morton,
Waterways Oversight Branch, Coast Guard Activities New York at (718)
354-4012.
Collection of Information
This proposed rule would call 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
[[Page 41986]]
would either preempt State law or impose a substantial direct cost of
compliance on them. We have analyzed this proposed 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 proposed rule would not result in such an
expenditure, we do discuss the effects of this rule elsewhere in this
preamble.
Taking of Private Property
This proposed rule would 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 proposed 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 proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 proposed 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.
Environment
We have considered the environmental impact of this proposed rule
and concluded that, under figure 2-1, paragraph (34)(g), of Commandant
Instruction M16475.lD, this rule is categorically excluded from further
environmental documentation. This proposed rule fits paragraph 34(g) as
it establishes a Regulated Navigation Area. A ``Categorical Exclusion
Determination'' is 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, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 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. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
2. Add Sec. 165.171 to read as follows:
Sec. 165.171 Regulated Navigation Area; Arthur Kill, NY and NJ.
(a) Regulated Navigation 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.
(b) Enforcement period. This section will be enforced from 8 a.m.
on Monday, September 1, 2003 until the dredging project is completed.
(c) Regulations. (1) The general regulations contained in 33 CFR
165.23 apply.
(2) All persons and vessels shall comply with the instructions of
the Coast Guard Captain of the Port or the designated on-scene-patrol
personnel. These personnel comprise commissioned, warrant, and petty
officers of the Coast Guard. Upon being hailed by a U. S. Coast Guard
vessel by siren, radio, flashing light, or other means, the operator of
a vessel shall proceed as directed.
(3) No vessel shall enter or transit any work area where drill
barges and/or dredges are located without permission of Vessel Traffic
Service New York (VTSNY). One-way traffic will be maintained during
this project in the active work areas. Permission to transit the work
area will normally not be given during blasting operations.
(4) Each vessel transiting in the vicinity of the work areas, where
drill barges and/or dredges are located, is required to do so at ``no
wake'' speed.
(5) No vessel shall enter the RNA when they are advised by the
drilling barge or VTSNY that a misfire or hangfire has occurred.
Vessels already underway in the RNA shall proceed to clear the impacted
area immediately.
(6) Vessel Movement Reporting System users are prohibited from
meeting or overtaking other vessels when transiting alongside an active
work area.
(7) Vessel Movement Reporting System users transiting with the
prevailing current (as measured from the Bergen Point current station)
are regarded as the stand-on vessel.
(8) Prior to entering the RNA, the master, pilot or operator of
each Vessel Movement Reporting System user shall ensure that they have
sufficient propulsion and directional control to safely navigate the
area under the prevailing conditions, and shall notify VTSNY as to
their decision regarding the employment of assist tugs while transiting
the RNA.
(9) Waiver. The Captain of the Port New York may, upon request,
authorize a deviation from any regulation in this section if it is
found that the proposed operations can be done safely. An application
for deviation must be received not less than 24 hours before the
intended operation and must state the need and describe the proposal.
(10) Tugs with tows includes a tug with a vessel or barge in tow,
alongside, or being pushed.
(11) Tug requirements. All vessels 350 feet in length, or greater,
excluding tugs with tows, require one assist tug. All vessels 700 feet
in length, or greater, excluding tugs with tows, require a minimum of
two assist tugs. All vessels 900 feet in length, or greater, excluding
tugs with tows, require a minimum of three assist tugs.
(12) Tidal current restrictions. Vessels 700 feet in length, or
greater, are restricted to movements within one
[[Page 41987]]
hour before or after slack water, as measured from the Bergen Point
current station.
(13) Astern tows. Hawser tows are not permitted unless an assist
tug accompanies the tow.
(14) When sustained winds are greater than 20 knots, as measured at
the Bayonne Bridge meteorological sensor, vessels are prohibited from
backing out of the Howland Hook Marine Terminal.
(15) Sustained winds from 20 to 34 knots. In sustained winds from
20 to 34 knots:
(i) Cargo ships and tankers in ballast may not transit the RNA;
(ii) Tugs pushing or towing alongside tank barges 350 feet in
length, or greater, in light condition, require an assist tug in the
RNA.
(16) Sustained winds greater than 34 knots. In sustained winds
greater than 34 knots, vessels 300 gross tons or greater and all tugs
with tows are prohibited from transiting the RNA.
(17) When visibility is less than one nautical mile the entire work
zone is closed to vessels over 350 feet in length and all tugs with
tows.
(18) The Vessel Traffic Service New York Director may impose
additional requirements through VTS measures, as per 33 CFR 161.11,
when the dredge is working in the most restricted areas of the
waterway.
Dated: July 9, 2003.
John L. Grenier,
Captain, Coast Guard, Acting Commander, First Coast Guard District.
[FR Doc. 03-17906 Filed 7-15-03; 8:45 am]
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