[Federal Register: June 1, 2006 (Volume 71, Number 105)]
[Rules and Regulations]
[Page 31085-31088]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jn06-8]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD01-05-106]
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; change in effective period and request
for comments.
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SUMMARY: The Coast Guard is amending the temporary regulated navigation
area (RNA) from the entrance of East Rockaway Inlet to the Atlantic
Beach Bridge, Nassau County, New York, and is extending its effective
period. 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: The amendment to Sec. 165.T01-106 in this rule is effective May
31, 2006. Section 165.T01-106, added at 70 FR 74676, December 16, 2005,
effective from 6 a.m., November 29, 2005, to 11:59 p.m., May 31, 2006,
as amended in this rule, is extended in effect until December 1, 2006.
Comments and related material must reach the Coast Guard on or before
July 31, 2006.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket CGD01-05-106 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 Junior Grade 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 is from 6 a.m.,
November 29, 2005, to 11:59 a.m., May 31, 2006.
We did not publish a notice of proposed rulemaking (NPRM) for this
TFR that would revise and extend the effective period of the existing
RNA regulation, 33 CFR 165.T01-106. Under 5 U.S.C. 553(b)(B), the Coast
Guard finds that good cause exists for not publishing an NPRM. This TFR
is urgently needed to protect the maritime public from shoaling hazards
in East Rockaway Inlet. Specifically, action is 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
[[Page 31086]]
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.
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 anticipates that it
will 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.
Specifically, the extension of the effective period of the
temporary final rule will allow sufficient time for the public to
participate in the permanent rulemaking process. As described herein,
the temporary final rule currently in effect is revised and its
effective date is extended. This extension period will allow for the
continued protection of the maritime public from the particular
grounding hazards that continue to affect the Rockaway Inlet while a
permanent rule is developed.
Although we have good cause to publish this rule without prior
notice and comment, we value public comments. As a result, we are
soliciting your comments on this temporary rule and may revise the
temporary rule in response to public comments.
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.
The Coast Guard is extending the effective date of this rule until
December 1, 2006, to allow the establishment of a permanent regulated
navigation area by notice and comment rulemaking. Continuing the
requirements in temporary Sec. 165.T01-106, as amended herein, will
allow us to ensure the public has sufficient time to participate in the
rulemaking process while we also fulfill our maritime safety duties.
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 TFR extends the effective period of a temporary
regulated navigation area (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[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, 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 temporary Sec. 165.T01-106 that this TFR is extending
prohibits the transit of vessels carrying petroleum products as cargo,
with a loaded draft greater than 5 feet, through the RNA. Paragraph (b)
of Sec. 165.T01-106 has been revised to list the factors the COTP will
consider 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. Operators of vessels carrying petroleum products
as cargo with a loaded draft greater than 5 feet may submit a request
to transit the regulated navigation area.
The Coast Guard is extending the effective period of the amended
temporary Sec. 165.T01-106 until December 1, 2006, allowing sufficient
time for public participation and comment during this rulemaking
process in anticipation of the development of a permanent rule. The RNA
in temporary Sec. 165.T01-106 will remain in effect until December 1,
2006. We have not revised paragraph (a), which defines the location of
the RNA, but we are republishing it in this rule so readers can see the
entire regulatory text in this document.
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
[[Page 31087]]
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 both 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 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.
[[Page 31088]]
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 change 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. Comments on
this section will be considered before we make the final decision on
whether this rule should be categorically excluded from further
environmental review.
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. Amend temporary Sec. 165.T01-106, by revising paragraphs (b) and
(c), and republish paragraph (a), to read as follows:
Sec. 165.T01-106 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[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, 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). 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 6 a.m. on
November 29, 2005 until December 1, 2006.
Dated: May 23, 2006.
Mark J. Campbell,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard
District.
[FR Doc. 06-5032 Filed 5-26-06; 3:49 pm]
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