E9-21435. Anchorage Regulations; Port of New York and Vicinity

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is amending the existing special anchorage area at Perth Amboy, New Jersey, at the junction of the Raritan River and Arthur Kill. This action is necessary to facilitate safe navigation and provide for a safe and secure anchorage for vessels of not more than 20 meters in length. This action is intended to increase the safety of life and property on the Raritan River and Arthur Kill, improve the safety of anchored vessels, and provide for the overall safe and efficient flow of vessel traffic and commerce.

DATES:

This rule is effective October 8, 2009.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2008-0047 and are available online by going to http://,www.regulations.gov,, inserting “USCG-2008-0047” in the “Keyword” box, and pressing “Search.” This material is 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or e-mail Mr. Jeff Yunker, Waterways Management Division, Coast Guard, telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On May 8, 2008, the Coast Guard published in the Federal Register a notice of proposed rulemaking (NPRM) entitled “Anchorage Regulations; Port of New York and Vicinity” (73 FR 26054). We received two letters commenting on the proposed rule, both of which stated the geographic coordinates appeared to be incorrect. One of the commenters suggested additional revisions to the proposed rule and requested a public meeting in the event the Coast Guard decided not to make the changes suggested. No public meeting was held, as the Coast Guard incorporated the commenter's suggestions in a supplemental notice of proposed rulemaking (SNPRM) published on April 2, 2009 (74 FR 14938). We received one letter commenting on the SNPRM. After publication of the SNPRM, no public meeting was requested and none was held.

Background and Purpose

During times of tidal shifts, vessels moored near the edge of this special anchorage area were found swinging out into the Raritan River Cutoff and the Raritan River Federal Channels. Since moored vessels in a special anchorage area are exempt from the Inland Rules of the Road [Rule 30 (33 U.S.C 2030) and Rule 35 (33 U.S.C. 2035)], vessels swinging out into these Federal Channels create a high risk of collision with larger commercial vessels that transit past this special anchorage area, especially at night and during times of inclement weather. Also, when larger commercial vessels maneuver to avoid a collision with recreation vessels that swing out into these channels it creates a hazardous, close-quarters passing situation with other larger commercial vessels operating within these Federal Channels.

On May 8, 2008, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Anchorage Regulations; Port of New York and Vicinity” in the Federal Register (73 FR 26054). That NPRM contained incorrect coordinates. Therefore, on April 2, 2009, the Coast Guard published a supplemental notice of proposed rulemaking (SNPRM) titled “Anchorage Regulations; Port of New York and Vicinity” (74 FR 14938). In that SNPRM, the Coast Guard corrected the coordinates and also incorporated suggestions made in comments on the May 2008 NPRM. Specifically, the Coast Guard proposed to expand the northern boundary of the special anchorage area, explained its decision not to require an additional buffer zone between moored vessels and the Federal Channel, proposed a revised prohibition on use of mooring piles or stakes, and proposed revised contact information provided for the Fleet Captain of the Raritan Yacht Club.

The Coast Guard received one letter commenting on the SNPRM. Those comments are discussed below.

Discussion of Comments and Changes

The Coast Guard received one letter commenting on the SNPRM. The commenter requested that only the Raritan Yacht Club main telephone number (732-826-2277) or VHF Channel 9 be published for mooring placement requests, and that the other telephone number be removed because it is a personal number. Additionally, due to revisions made to the NPRM, the commenter withdrew the previous request for a public hearing. The Coast Guard agrees with these comments. The contact information in the regulation will be revised to reflect this comment.

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.

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This finding is based on the fact that this rule requires recreational vessels to anchor a greater distance from the Raritan River Cutoff and Raritan River Federal Channels. As displayed on the government navigation charts, the current boundaries of the special anchorage area and adjacent Federal Channels nearly overlap. This rule greatly reduces the possibility of marine casualties, pollution incidents, or human fatalities that could be caused by these recreational vessels anchoring within, or near, the Federal Channels and causing a collision with any of the approximately 5,000 commercial vessels that transit the Raritan River Cutoff Channel on an annual basis. Vessel transit statistics from the ACOE Navigation Data Center are available online at: http://www.iwr.usace.army.mil/​ndc/​wcsc/​wcsc.htm. Additionally, vessels are still able to anchor in an area approximately 850 to 1,050 yards wide by 480 to 980 yards long off the southern Perth Amboy shoreline.

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 might be small entities: the owners or operators of recreational vessels intending to anchor immediately adjacent to Raritan River Cutoff and Raritan River Federal Channels, which could cause a marine casualty, pollution incident, or human fatality due to a commercial vessel colliding with the anchored or moored recreational vessel(s). This rule will also affect commercial vessels by reducing the possibility that they will encounter hazardous, close-quarters passing conditions created by recreational vessels within the channels. However, the requirements contained within the rule will not have a significant economic impact on these entities for the following reasons: the revised special anchorage area requires vessels to moor, or anchor, at a greater distance from the Raritan River and Raritan River Cutoff Federal Channels, reducing the threat of collision with vessels transiting the adjacent Federal Channel. This special anchorage area was never designed to authorize vessels to anchor, or moor, in a manner where they would extend into the Federal Channel creating a hazard to navigation. Additionally, vessels will still be able to anchor in an area approximately 850 to 1,050 yards wide by 480 to 980 yards long off the southern Perth Amboy shoreline.

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), in the SNPRM we offered to assist small entities in understanding the rule so that they could 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 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 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 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 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 which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph 34(f), of the Instruction. This rule involves the expansion of a Special Anchorage Area. This rule fits the category selected from paragraph 34(f) as it is a Special Anchorage Area. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 110

• Anchorage grounds

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

PART 110—ANCHORAGE REGULATIONS

1. The authority citation for part 110 continues to read as follows:

Authority: 33 U.S.C. 471, 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

2. Revise § 110.60(d)(10) to read as follows:

§ 110.60

Captain of the Port, New York.

* * * * *

(d) * * *

(10) Perth Amboy, NJ. All waters bound by the following points: 40°30′26.00″ N, 074°15′42.00″ W; thence to 40°30′24.29″ N, 074°15′35.20″ W; thence to 40°30′02.79″ N, 074°15′44.16″ W; thence to 40°29′35.70″ N, 074°16′08.88″ W; thence to 40°29′31.00″ N, 074°16′20.75″ W; thence to 40°29′47.26″ N, 074°16′49.82″ W; thence to 40°30′02.00″ N, 074°16′41.00″ W, thence along the shoreline to the point of origin.

(i) This area is limited to vessels no greater than 20 meters in length and is primarily for use by recreational craft on a seasonal or transient basis. These regulations do not prohibit the placement of moorings within the anchorage area, but requests for the placement of moorings should be directed to the Raritan Yacht Club Fleet Captain (telephone [phone] or VHF Channel 9) to ensure compliance with local and State laws. All moorings shall be so placed that no vessel, when anchored, will at any time extend beyond the limits of the area. Fixed mooring piles or stakes are prohibited seaward of the pier head line. Mariners are encouraged to contact the Raritan Yacht Club Fleet Captain for any additional ordinances or laws and to ensure compliance with additional applicable State and local laws.

(ii) [Reserved]

* * * * *

Dated: July 30, 2009.

J.L. Nimmich,

Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.