[Federal Register: December 30, 2004 (Volume 69, Number 250)]
[Rules and Regulations]
[Page 78307-78310]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de04-10]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-04-152]
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 with request for comments.
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SUMMARY: The Coast Guard is re-establishing a temporary regulated
navigation area (RNA) that was in effect from 6 December to 10
December, until 10 March 2005. The area of this RNA covers the entrance
of East Rockaway Inlet to the Atlantic Beach Bridge, Nassau County, New
York. This rule restricts the passage of commercial vessels carrying
petroleum products with a loaded draft in excess of five feet.
Significant shoaling in this area has reduced the depths of the
navigable channel making the area unsafe for passage of vessels with
drafts of greater than five feet carrying petroleum products as cargo.
Operators of such vessels may request transit of the area on a trip-by-
trip basis to the Captain of the Port, Long Island Sound, New Haven,
Connecticut.
DATES: This rule is effective from 12:01 a.m. on December 11, 2004
until 11:59 p.m. on March 10, 2005. Comments must be received on or
before January 10, 2005.
ADDRESSES: Comments should be mailed to the Waterways Management
Officer, Coast Guard Group/Marine Safety Office Long Island Sound, 120
Woodward Ave., New Haven, CT 06512. Comments received, along with
documents indicated in this preamble as being available in the docket,
are part of docket CGD01-04-152 and will be available for inspection or
copying at Group/MSO Long Island Sound, New Haven, CT, at the address
above, between 9 a.m. and 3 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant A. Logman, Waterways
Management Officer, Coast Guard Group/Marine Safety Office Long Island
Sound at (203) 468-4429.
SUPPLEMENTARY INFORMATION:
Request for Comments and Public Meeting
Interested persons are invited to participate in this rulemaking by
submitting written views, comments, data, or arguments. Persons
submitting comments should include their names and addresses, identify
this rulemaking (CGD01-04-152), the specific section of this rule to
which each comment applies, and give reasons for each comment. The
Coast Guard requests that all comments and attachments be submitted in
an 8\1/2\ x 11 unbound format suitable for
copying and electronic filing. If that is not practical, a second copy
of any bound material is requested. Persons desiring acknowledgment
that their comments have been received should enclose a stamped, self-
addressed post card or envelope.
The Coast Guard will consider all comments received during the
comment period, and may modify this temporary final rule in light of
comments received. The Coast Guard plans no public hearing. Persons may
request a public hearing by writing to Waterways Management Officer,
Group/Marine Safety Office Long Island Sound at the address listed
under ADDRESSES above. The request should include reasons why a hearing
would be beneficial. If it determines that the opportunity for oral
presentations will aid this rulemaking, the Coast Guard will hold a
public hearing at a time and place announced by a later notice in the
Federal Register.
In accordance with 5 U.S.C. 553(d)(3) good cause exists for
publishing a temporary final rule without a prior comment period. Due
to the immediate need for the protection of the maritime public, it is
impracticable to publish a NPRM in advance. Delaying this rule to
provide for a notice and comment period would be impracticable,
unnecessary and contrary to the public interest. Any delay in
implementing this rule would be contrary to public interest as
immediate action is needed to prevent vessels, carrying petroleum
products as cargo with a loaded draft of greater than five feet, from
transiting the area so as to avoid the potential hazards associated
with a grounding of a vessel carrying petroleum products as cargo.
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that
good cause exists for not publishing an NPRM. Due to the immediate need
for the protection of the maritime public, it is impracticable to
publish a NPRM in
[[Page 78308]]
advance. Thus, 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. Any delay in implementing
this rule would be contrary to public interest as immediate action is
needed to prevent vessels, carrying petroleum products as cargo with a
loaded draft of greater than five feet, from transiting the area so as
to avoid the potential hazards associated with a grounding of a vessel
carrying petroleum products as cargo.
On December 3, 2004, the M/V KRISTIN POLING, a small coastal
tanker, ran aground at high tide south of East Rockaway Inlet, Nassau
County, New York. East Rockaway Inlet has experienced significant
shoaling causing the channel to migrate towards the west. The shoaling
in this area has reduced depths to a point where transit for vessels
drawing greater than five feet presents a danger of grounding. The
delay inherent in the NPRM process is contrary to the public interest
and impracticable, as immediate action is needed to minimize the
potential danger posed by the possibility of further groundings of
tankers and the potential resultant oil spills in and around this
regulated navigation area.
On 4 December 2004, the First Coast Guard District Commander
implemented a temporary RNA (CGD01-04-150), effective from 6 p.m. on
December 4, 2004 to 11:59 p.m. on December 10, 2004. Since the
establishment of that area, we have determined that the continued
application of these restrictions is prudent to protect the maritime
public.
Background and Purpose
On Friday December 3, 2004, the M/V KRISTIN POLING, a small coastal
tanker carrying approximately 18,000 barrels of home heating oil, ran
aground at high tide south of East Rockaway Inlet, approximately \1/4\
mile west of Silver Point at the end of Atlantic Beach. This grounding
presented the potential for a major oil spill. The M/V KRISTIN POLING
was en route to Sprague Energy Oceanside terminal, a home heating oil
distributor located in Oceanside, Long Island, New York, a major
supplier of home heating oil for western Long Island. The M/V KRISTIN
POLING conducted lightering operations on scene until the vessel was
re-floated. No product was discharged into the water as a result of
this grounding. East Rockaway Inlet has experienced significant
shoaling causing the channel to shift towards the west. The shoaling in
this area has reduced depths to a point where transit for vessels
drawing greater than five feet presents a danger of grounding, and the
potential for a significant oil spill. East Rockaway Inlet is scheduled
to be dredged by contractors for the U.S. Army Corps of Engineers
beginning December 11, 2004. Once completed, vessels will be able to
safely transit the inlet. Although the dredge project is expected to
require 45 days to complete, delays can be expected due to inclement
weather, warranting a longer effective period for this rulemaking to
ensure adequate protections for the marine community and environment
for the entire dredging period. Once the dredge project is complete,
the RNA established herein will be cancelled.
Discussion of Rule
This rule will provide for the safety of vessel traffic 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.
This rule prohibits the transit of vessels carrying petroleum products
as cargo with a loaded draft greater than five feet through the
regulated navigation area. Operators of such vessels wishing to transit
the regulated navigation area may submit a request to the Captain of
the Port, Long Island Sound on a trip-by-trip basis. The request must
include the proposed under-keel-clearance, taking into account the
predicted tide. This RNA is in effect from 12:01 a.m. on December 11,
2004 until 11:59 p.m. on March 10, 2005.
Any violation of the regulated navigation area described herein, is
punishable by, among others, civil and criminal penalties, in rem
liability against the offending vessel, and license sanctions.
The Captain of the Port Long Island Sound will notify the maritime
community of the periods during which the regulated navigation area
will be enforced. Broadcast notifications will be made to the maritime
community advising them of the boundaries of the regulated navigation
area.
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 RNA limits only vessels carrying petroleum
products as cargo with a loaded draft of greater than five feet;
operators of vessels with a loaded draft of greater than five feet may
request permission to transit the regulated navigation area from the
Captain of the Port, Long Island Sound. COTP Long Island Sound is
working with the U.S. Army Corps of Engineers to have an accurate
survey of East Rockaway Inlet conducted to determine whether there is
adequate water for vessels to transit this inlet prior to dredging
being completed. This survey will enable the COTP to quickly and
appropriately assess requests to transit East Rockaway Inlet for the
effective period of this RNA. Recreational and other maritime traffic
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; and
Sprague Energy Oceanside, located in Oceanside, Long Island, New
[[Page 78309]]
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 A. Logman, Waterways Management Officer, Group/Marine Safety
Office Long Island Sound, at (203) 468-4429.
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
The Coast Guard considered the environmental impact of this rule
and concluded that, under figure 2-1, paragraph 34(g), of Commandant
Instruction M16475.1D, this rule is categorically excluded from further
environmental documentation. 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.
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. 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.
[[Page 78310]]
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
0
2. From 12:01 a.m. on December 11, 2004 until 11:59 p.m. on March 10,
2004, add temporary Sec. 165.T01-152 to read as follows:
Sec. 165.T01-152 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: 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]34'56'' 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 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 five 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 five feet may submit a request to transit
the regulated navigation area, on a trip-by trip basis, to the Captain
of the Port, Long Island Sound. The request must include the proposed
under keel clearance for the transit, taking into account the predicted
tide.
(c) Effective period. This temporary final rule is effective from
12:01 a.m. on December 11, 2004 until 11:59 p.m. on March 10, 2004.
Dated: December 10, 2004.
David P. Pekoske,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 04-28549 Filed 12-29-04; 8:45 am]
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