[Federal Register: December 11, 2006 (Volume 71, Number 237)]
[Rules and Regulations]
[Page 71483-71486]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de06-6]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-06-142]
RIN 1625-AA11
Regulated Navigation Area; East Rockaway Inlet to Atlantic Beach
Bridge, Nassau County, Long Island, NY
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is issuing another temporary final rule to
continue a temporary regulated navigation area (RNA) from the entrance
of East Rockaway Inlet to the Atlantic Beach Bridge, Nassau County, New
York. Significant shoaling in this area has reduced the depths of the
navigable channel and has increased the risk of vessels with drafts of
greater than 5 feet carrying petroleum products as cargo grounding in
the channel, and the potential for a significant oil spill. This rule
will continue to restrict passage of commercial vessels carrying
petroleum products with a loaded draft in excess of 5 feet.
DATES: This rule is effective from December 1, 2006, until June 1,
2007.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket CGD01-06-142 and will be available for
inspection or copying at Sector Long Island Sound, New Haven, CT,
between 9 a.m. and 3 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant D. Miller, Waterways
Management Division, Coast Guard Sector Long Island Sound at (203) 468-
4596.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On December 16, 2005, we published a temporary final rule (TFR)
entitled ``Regulated Navigation Area; East Rockaway Inlet to Atlantic
Beach Bridge, Nassau County, Long Island, NY'' in the Federal Register
(70 FR 74676). The effective period for that rule was November 29,
2005, to May 31, 2006. That rule was later revised and extended to
December 1, 2006. (71 FR 31085, June 1, 2006). This temporary final
rule will continue a temporary regulated navigation area (RNA) in the
same location until June 1, 2007.
We did not publish a notice of proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing an NPRM. The original TFR was urgently
needed to protect the maritime public from shoaling hazards in East
Rockaway Inlet. Specifically, action was needed to prevent vessels
carrying petroleum products as cargo with a loaded draft of greater
than 5 feet from transiting the area so as to avoid the potential
hazards associated with a grounding of a vessel.
East Rockaway Inlet has experienced significant shoaling causing
the channel to migrate towards the west. Water depths in the federal
navigation channel have been reduced in some areas to as low as 5 feet.
This channel was last dredged by the Army Corps of Engineers during the
winter of 2004-2005. However, the shoaling in this area has reduced
depths to a point where transit for vessels drawing greater than 5 feet
increases the immediate risk of grounding. Therefore, the Coast Guard
has relocated the channel buoys to the west to account for channel
migration. While these aids now mark the deepest water in the channel,
this channel has experienced rapid shoaling in the past, and is
expected to experience the same in the future. The potential for
significant shoaling continues to present a danger to the maritime
public and thus appropriate regulatory measures are needed to continue
to protect the maritime public from those hazards in East Rockaway
Inlet. Accordingly, the Coast Guard anticipates that permanent
regulations will be needed to protect the maritime users from the risk
of grounding as well as the general public from the grounding hazards
and resultant potential consequences of discharging petroleum into the
navigable channel and surrounding area. We anticipate that by June 2007
we will be able to complete a notice-and-comment rulemaking proposing
that the RNA be made permanent.
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. The measures contemplated by this
rule were designed to prevent vessels carrying petroleum products as
cargo with a loaded draft of greater than 5 feet from transiting the
area so as to avoid the potential hazards associated with a grounding
of a vessel and potential resultant discharge of petroleum products.
The delay inherent in the NPRM process for developing a permanent rule
is contrary to the public interest insofar as it may render vessels at
risk for grounding in the interim. The Coast Guard has begun the
process to publish an NPRM to establish a permanent regulated
navigation area addressing the passage of commercial vessels carrying
petroleum products with a loaded draft in excess of 5 feet through East
Rockaway Inlet. The Coast Guard has continued to encounter delays in
the processing of the NPRM. This temporary final rule will allow for
the continued protection of the maritime public from the particular
grounding hazards that continue to affect the Rockaway Inlet while
permanent rules are developed.
In the last temporary final rule extending the effective period of
the RNA, we requested post-promulgation comments. The Coast Guard has
received no written comments or complaints to suggest any modification
of the scope of the RNA.
[[Page 71484]]
Background and Purpose
East Rockaway Inlet is on the South Shore of Long Island, in Nassau
County, New York. The Inlet has experienced significant shoaling since
dredging was completed in the late winter of 2004-2005, causing the
channel to migrate towards the west. Water depths in the area
designated by the Army Corps of Engineers as the Federal navigation
channel have been reduced in some areas to as low as 5 feet. This
channel was last dredged by the Army Corps of Engineers during the
winter of 2004-2005. The channel buoys were relocated to the west to
account for channel migration. East Rockaway Inlet is frequented by
small coastal tankers and tugs towing oil barges supplying two
facilities: Sprague Energy Oceanside, located in Oceanside, Long
Island, New York, a supplier of home heating oil for Long Island, New
York, and Keyspan E.S. Barrett, an electrical power generation
facility, located in Island Park, Long Island, New York. The shoaling
in this area has reduced depths to a point where transit for vessels
drawing greater than 5 feet increases the risk of immediate grounding,
and the potential for a significant oil spill resulting from a
grounding. Similar shoaling led to the groundings in late 2003 and in
2004 of small coastal tankers carrying home heating oil. Additional
time is necessary to ensure the public has sufficient time to
participate in the rulemaking process. The Coast Guard is continuing a
temporary RNA in place until June 1, 2007, to allow the establishment
of a permanent regulated navigation area by notice-and-comment
rulemaking.
Discussion of Rule
This rule will continue to provide for the safety of vessel traffic
and the maritime public in and around East Rockaway Inlet, Long Island,
New York. This regulation establishes a temporary RNA on the navigable
waters of the East Rockaway Inlet in an area bounded by lines drawn
from the approximate position of the Silver Point breakwater buoy (LLN
31500) at 40[deg]34'56'' N, 073[deg]45'19'' W, running north to a point
of land on the northwest side of the inlet at position 40[deg]35'28''
N, 073[deg]46'12'' W, thence easterly along the shore to the east side
of the Atlantic Beach Bridge, State Route 878, over East Rockaway
Inlet, thence across said bridge to the south side of East Rockaway
Inlet, thence westerly along the shore and across the water to the
beginning.
The rule described herein prohibits the transit of vessels carrying
petroleum products as cargo, with a loaded draft greater than 5 feet,
through the RNA. Operators of vessels carrying petroleum products as
cargo with a loaded draft greater than five feet who wish to transit
the regulated navigation area must request permission from the Captain
of the Port, Long Island Sound. They should seek permission at least 48
hours prior to transiting the area to prevent delays and minimize the
risk of denial of entry.
As under the current TFR, the COTP will consider the following
factors when considering requests to enter or transit the RNA;
environmental and safety factors, including but not limited to: Weather
conditions affecting transit (e.g. sea state, state of the tide, winds
and visibility), the loaded draft of the particular vessel seeking to
transit the area, and the minimum under keel clearance of the
particular vessel.
The Coast Guard is continuing a temporary regulated navigation area
until June 1, 2007, because we anticipate we will need this much time
to allow for public participation and comment on a proposed rulemaking
for a permanent rule. This temporary final rule will be in effect from
December 1, 2006 until June 1, 2007.
Any violation of the RNA described herein, is punishable by, among
others, civil and criminal penalties, in rem liability against the
offending vessel, and license sanctions.
In addition to publishing this TFR in the Federal Register, the
Captain of the Port Long Island Sound will notify the maritime
community of the requirements of this regulated navigation area via
broadcast notifications and notifications in the local notice to
mariners.
Regulatory Evaluation
This 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 rule will be so minimal that
a full Regulatory Evaluation under the regulatory policies and
procedures of DHS is unnecessary. This regulation may have some impact
on the public, but the potential impact will be minimized for the
following reasons: The regulated navigation area limits only vessels
carrying petroleum products as cargo with a loaded draft of greater
than 5 feet; operators of vessels with a loaded draft of greater than 5
feet may request permission to transit the regulated navigation area
from the Captain of the Port, Long Island Sound. Recreational and other
maritime traffic not covered by this rule is not prohibited from
transiting this area.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule will 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 may affect the following entities, some of which
may be small entities: The owners or operators of vessels carrying
petroleum products intending to transit or anchor in those portions of
the East Rockaway Inlet covered by the regulated navigation area;
Sprague Energy Oceanside, located in Oceanside, Long Island, New York,
a supplier of home heating oil, and Keyspan E.S. Barrett, an electrical
power generation facility, located in Island Park, Long Island, New
York, which receive the vessels affected by this regulated navigation
area. For the reasons outlined in the Regulatory Evaluation section
above, this rule will not have a significant impact on a substantial
number of small entities.
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 subsection 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 [Pub. L. 104-121], the Coast Guard
wants to assist small entities in understanding this rule so that they
can better evaluate its effects on them and participate in the
rulemaking process. If this rule will affect your small business,
organization, or governmental jurisdiction and you have questions
concerning its provisions or options for compliance, please call
Lieutenant Junior Grade D. Miller, Waterways Management
[[Page 71485]]
Division, Coast Guard Sector Long Island Sound, at (203) 468-4596.
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).
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 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 affect 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 will not concern 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 will 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.
To help the Coast Guard establish regular and meaningful
consultation and collaboration with Indian and Alaskan Native tribes,
we published a notice in the Federal Register (66 FR 36361, July 11,
2001) requesting comments on how to best carry out the Order. We invite
your comments on how this rule might impact tribal governments, even if
that impact may not constitute a ``tribal implication'' under the
Order.
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. It has not been designated by the Administrator of the
Office of Information and Regulatory Affairs 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 Commandant Instruction M16475.1D
and Department of Homeland Security Management Directive 5100.1, 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
that there are no factors in this case that would limit the use of a
categorical exclusion under 2.B.2 of the Instruction. Therefore, this
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of
the Instruction, from further environmental documentation. This rule
fits the category selected from paragraph (34)(g), as it would
establish a regulated navigation area. A final ``Environmental Analysis
Check List'' and a final ``Categorical Exclusion Determination'' will
be 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.
0
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. 1225, 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.
0
2. From December 1, 2006, until June 1, 2007, add temporary Sec.
165.T01-142 to read as follows:
Sec. 165.T01-142 Regulated Navigation Area, East Rockaway Inlet to
Atlantic Beach Bridge, Nassau County, Long Island, New York.
(a) Location. The following area is established as a regulated
navigation area (RNA): All waters of East Rockaway Inlet in an area
bounded by lines drawn from the approximate position of the Silver
Point breakwater buoy (LLN 31500) at 40[deg]34[min]56[sec] N,
073[deg]45[min]19[sec] W, running north to a point of land on the
northwest side of the inlet at position 40[deg]35[min]28[sec] N,
073[deg]46[min]12[sec] W, thence easterly along the shore to the east
side of the Atlantic Beach Bridge, State Route 878, over East Rockaway
Inlet,
[[Page 71486]]
thence across the bridge to the south side of East Rockaway Inlet,
thence westerly along the shore and across the water to the beginning.
(b) Regulations. (1) Vessels carrying petroleum products as cargo,
with a loaded draft greater than 5 feet, are prohibited from transiting
within the regulated navigation area.
(2) Operators of vessels carrying petroleum products as cargo with
a loaded draft greater than 5 feet must request to transit the
regulated navigation area to the Captain of the Port, Long Island Sound
(COTP). They should seek permission at least 48 hours prior to
transiting the area to prevent delays and minimize the risk of denial
of entry. Factors the COTP will consider before granting permission to
enter or transit the RNA described in paragraph (a) of this section
are: Environmental and safety factors, including, but not limited to:
Weather conditions affecting transit (e.g. sea state, state of the
tide, winds, and visibility,) the loaded draft of the particular vessel
seeking to transit the area, and the minimum under keel clearance of
the particular vessel.
(c) Effective period. This section is effective from December 1,
2006, until June 1, 2007.
Dated: November 27, 2006.
Timothy S. Sullivan,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E6-20921 Filed 12-8-06; 8:45 am]
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