[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Rules and Regulations]
[Pages 4529-4532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1660]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2010-1126]
RIN 1625-AA00
Safety Zone; Underwater Hazard, Gravesend Bay, Brooklyn, NY
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary safety zone on the
waters of Gravesend Bay, Brooklyn, New York. This rule is necessary to
provide for the safety of life and property on the navigable waters.
This rule is intended to restrict unauthorized persons and vessels from
traveling through or conducting underwater activities within a portion
of Gravesend Bay until recently discovered military munitions are
rendered safe and removed from the area.
DATES: This rule is effective from January 26, 2011 until 11:59 p.m. on
June 30, 2011. This rule has been enforced with actual notice since
December 18, 2010.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2010-1126 and are available online
by going to http://www.regulations.gov, inserting USCG-2010-1126 in the
``Keyword'' box, and then clicking ``Search.'' They are also available
for inspection or copying at the 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,
[[Page 4530]]
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call or e-mail Lieutenant William George, Waterways
Management Division, Coast Guard Sector New York; telephone 718-354-
4114, e-mail [email protected]. If you have questions on
viewing the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision 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 immediate action is necessary to
ensure the safety of the public in the vicinity of munitions recently
discovered in Gravesend Bay by civilian divers. U.S. Navy underwater
surveys confirmed the location of unexploded ordnance in Gravesend Bay.
In the interest of public safety the U.S. Navy has requested that the
Coast Guard restrict access to the area in which the munitions are
located until the munitions can be rendered safe and removed. Immediate
action is required to ensure that no unauthorized persons and vessels
travel through or conduct underwater activities that may disturb the
current location of the unexploded ordnance, such as dive operations or
anchoring within close proximity to the unexploded munitions.
Publishing a NPRM and waiting 30 days for comment would be contrary to
the public interest because any delay in the effective date of this
rule would expose mariners, the boating public, and divers to the
potential hazards associated with unexploded ordnance. Furthermore, a
separate notice of proposed rulemaking will be pursued, where the
public will have the opportunity to provide comment.
For these reasons, 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.
Basis and Purpose
In response to media reports of military munitions found in
Gravesend Bay by civilian divers, U.S. Navy Explosive Ordnance Disposal
divers from Naval Weapons Station Earle conducted underwater surveys
and confirmed the location of munitions on the bottom of Gravesend Bay.
The munitions consist of approximately 1,500 rounds of 20mm ammunition,
one 3-inch diameter projectile and two cartridge casings.
In the interest of public safety, the U.S. Navy has requested that
the Coast Guard limit access to the location in Gravesend Bay where the
munitions are located until the ordnance could be rendered safe and
removed.
This temporary safety zone is necessary to ensure the safety of
mariners, vessels, and civilian divers from the potential hazards
associated with unexploded military munitions. This temporary final
rule is an interim measure while a long-term rulemaking process is
pursued separately under docket number USCG-2010-1091.
Discussion of Rule
The Captain of the Port New York is establishing a temporary safety
zone around the location of the unexploded ordnance site to ensure the
safety of mariners and vessels transiting in the vicinity of unexploded
ordnance as well as divers intending to dive in the area.
The safety zone will encompass all waters of Gravesend Bay within
110-yard radius of a point at the approximate position 40[deg]36'30''
N, 074[deg]02'14'' W (NAD 83), approximately 70 yards southeast of the
Verrazano Bridge Brooklyn tower.
All persons and vessels shall comply with the instructions of the
Coast Guard Captain of the Port or the designated on-scene
representative. Entry into, transiting, anchoring, or diving within the
safety zone is prohibited unless authorized by the Captain of the Port
New York, or the on-scene representative. The Captain of the Port or
the on-scene representative may be contacted via VHF Channel 16.
Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
Regulatory Planning and Review
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.
This rule temporarily restricts access to a small portion of
Gravesend Bay until unexploded military ordnance are rendered safe and
removed. The safety zone is located in an area where the Coast Guard
expects insignificant adverse impact to mariners from the zone's
activation. This rule is intended to protect the public from the
hazards associated with unexploded ordnance. Furthermore, vessels will
be able to safely transit around the area.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this 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 rule will
not have a significant economic impact on a substantial number of small
entities.
This rule will affect the following entities, some of which may be
small entities: The owners and operators of vessels intending to
transit or anchor in a portion of Gravesend Bay, in the vicinity of the
Verrazano Bridge, Brooklyn, NY.
This safety zone will not have a significant economic impact on a
substantial number of small entities for the following reasons: Vessel
traffic can safely transit around the zone. The rule limits access to a
relatively small portion of the waterway where there is a known hazard
until the hazard is rendered safe. Before the effective period, we will
issue maritime advisories widely available to users of the waterway.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process.
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
[[Page 4531]]
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.
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 (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
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
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 does not create 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 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.
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. 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.
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 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 concluded
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of
the Instruction. This rule involves the establishment of a temporary
safety zone on the waters of Gravesend Bay until recently discovered
military munitions are rendered safe and removed from the area. An
environmental analysis checklist and a categorical exclusion
determination will be available in the docket where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, 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
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, 3306,
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 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. A new temporary Sec. 165.T01-1126 is added as follows:
Sec. 165.T01-1126 Safety Zone; Underwater Hazard, Gravesend Bay,
Brooklyn, NY.
(a) Regulated area. The following area is a temporary safety zone:
All waters of Gravesend Bay within 110-yard radius of a point at the
approximate position 40[deg]36'30'' N, 074[deg]02'14'' W (NAD 83),
approximately 70-yards southeast of the Verrazano Bridge Brooklyn
tower.
(b) Effective period. This regulation is effective from 12:01 a.m.
on December 18, 2010 until 11:59 p.m. June 30, 2011.
(c) Regulations. (1) The general regulation contained in 33 CFR
165.23 apply.
(2) Entry into or movement within this zone is prohibited unless
authorized by the Captain of the Port New York.
(3) All persons and vessels shall comply with the instructions of
the Coast Guard Captain of the Port New York or the designated on-
scene-patrol personnel. These designated on-scene-patrol 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.
[[Page 4532]]
Dated: December 17, 2010.
L.L. Fagan,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2011-1660 Filed 1-25-11; 8:45 am]
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