2010-30741. Anchorage Regulations; Long Island Sound

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

In this rule the Coast Guard establishes seven anchorage grounds in Long Island Sound. These anchorages are located in Connecticut and New York State waters. This action is necessary to aid in facilitating the safe and secure anchoring and transiting of vessels, particularly deep draft vessels, transiting Long Island Sound or awaiting entry to a port or facility in New York and Connecticut.

DATES:

This rule is effective January 7, 2011.

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-2008-0171 and are available online by going to http://www.regulations.gov,, inserting USCG-2008-0171 in the “Keyword” box, and then clicking “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 LT Judson Coleman, Prevention Department, Coast Guard Sector Long Island Sound: 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 June 12, 2009, we published a notice of proposed rulemaking (NPRM) entitled “Anchorage Regulations; Long Island Sound” in the Federal Register (74 FR 27948). We received four letters commenting on the proposed rule. No request for a public meeting was made. No public meeting was held.

Basis and Purpose

This rule establishes seven anchorage grounds in accordance with 33 CFR 109.05 and 110.1(b). This action is necessary to aid in facilitating the safe and secure anchoring and transiting of vessels, particularly deep draft vessels, through Long Island Sound or while awaiting entry to a port or facility in New York or Connecticut. The anchorage grounds are designated for general purposes, but are intended primarily for use by commercial vessels of 300 gross tons and greater and all tank vessels, including tank barges.

Creating official anchorage grounds will cause more vessels to anchor in these grounds, in addition to the large number that already do so, thereby providing the Captain of the Port (COTP) with increased options for vessels needing to anchor while awaiting authorization to enter port. The designation of anchorage grounds will provide for the safety of navigation in that it provides designated locations for anchorage of deep draft vessels throughout Long Island Sound, in close proximity to the major ports of Bridgeport, New Haven, and New London, Connecticut; and Riverhead, Northport, and Port Jefferson, New York. Vessels transiting Long Island Sound will now see charted anchorage grounds, thus improving safety of navigation.

Background

We consulted with several agencies in the development of these anchorage grounds, including: The Army Corps of Engineers New England District, the Army Corps of Engineers New York District, the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), the Connecticut Department of Environmental Protection—Office of Long Island Sound Programs, the New York Department of State and the New York Department of Conservation. Additionally, the licensed marine pilots' organizations of both Connecticut and New York were consulted due to their extensive knowledge of the usage and need for anchorage grounds in Long Island Sound.

In determining the need for, and appropriate location of, the anchorage grounds, we considered several factors, including: The commercial need for anchorage grounds, proximity to ports, safety of navigation, potential impact on commercial fishing, location of dredged material disposal sites, maritime security, environmental implications and location of known underwater obstructions, cables, pipelines and wrecks.

The location of several submarine cables and pipelines carrying electricity and natural gas are de facto limitations on anchoring as these are hazards for vessels anchoring elsewhere in the Sound. Past anchor snags of submarine cables have not only interrupted use of the cable, but also present potential hazards to the stability of vessels as well as to the marine environment, should the housing of the cable contain any environmentally harmful materials. There are no cable or pipeline areas running through any of the seven anchorage grounds. Establishment of these anchorage grounds provides for protection of the environment in that vessels may anchor in an area free from cables. This would provide protections against anchor strikes of submarine cables and pipelines. Designation of these anchorage grounds will help guide the installation of future cables or pipelines so that they are located outside of the anchorage grounds.

This rule does not exclude fishing activity or the transit of vessels in the anchorage grounds, but only requires that all vessels maintain a distance of 500 yards from an anchored vessel that is conducting bunkering or lightering operations. Anchored vessels conducting bunkering or lightering operations are readily identified as they must display a red flag as required by 46 CFR 35.30-1 in addition to the navigation lights and shapes required by 33 U.S.C. 2001-2038. We anticipate the designation of these anchorage grounds may increase the number of anchored vessels in the area; however, such increase will cause only minimal interference to transiting vessels as the areas have historically been utilized for anchoring. The anchorage grounds have been configured so they do not overlap with leased shellfish beds.

The NOAA Navigation Manager for the Northeast Region has provided information regarding the location of wrecks within Long Island Sound. No historical wrecked vessels are located within any of the anchorage grounds.

As discussed below, the anchorage grounds established by this final rule do not overlap dredge disposal sites.

Discussion of Comments and Changes

Of the four comment letters received, two expressed support for the regulation and two expressed concerns about specific provisions. We revised the regulation in response to these comments, and we discuss those changes below.

The Army Corps of Engineers commented that three of the proposed anchorage grounds overlapped with dredge disposal sites. The Army Corps expressed concern that anchoring activities could disturb potentially contaminated sediment at these dredge disposal sites. After further consultation with the Army Corps, therefore, the Coast Guard reconfigured the proposed Bridgeport, New Haven South, and New London anchorage grounds to avoid dredge disposal sites. The Bridgeport anchorage ground is in the same location but slightly smaller than proposed in the NPRM. We also removed a portion of the northwest side of the New Haven South anchorage ground, reducing the overall size slightly so not to intrude into the Dumping Ground nearby. The New London site remained the same size, but we shifted it two and one half (2.5) nautical miles to the southwest. These changes are minor and do not affect the general location or use of the anchorages as proposed in the NPRM.

In paragraph (b)(2), we revised the notification requirement to affect vessels anchoring in the anchorage area, rather than entering the anchorage area. The new language is more narrowly tailored to the safety purpose of that notification requirement.

In paragraph (b)(4), for the convenience of the reader we noted the restrictions already in place as the result of an existing Regulated Navigation Area. We also simplified the proposed prohibition on fishing and navigation within 500 yards of certain vessels to, simply, navigation within 500 yards of anchored vessels conducting bunkering or lightering operations. The revised provision is clearer, and preserves safety precautions while avoiding confusion about which vessels are carrying petroleum or other flammable cargo. We then moved proposed paragraph (b)(14), discussing the identification of vessels conducting lightering or bunkering, to immediately follow (b)(4), and renumbered all subsequent paragraphs accordingly. These minor organizational changes are intended to make the regulation clearer and easier to read.

One comment letter expressed concern regarding paragraph (b)(5) (previously paragraph (b)(14) of the proposed rule), which addresses light signals for vessels engaged in lightering or bunkering within an anchorage. The commenter correctly pointed out that 46 CFR 35.30-1 does not permit a vessel to display a red light while at anchor, because such a light could be confused with a running light. Common practice is to illuminate the red “Bravo” flag with a spotlight at night. Accordingly, we have revised the text of paragraph (b)(5) to require that a vessel conducting lighting or bunkering operations in the anchorage ground display a red flag by day and illuminate the flag by spotlight at night. We also added reference to the existing requirements for day signals, lights, and whistles set forth in Title 33 of the U.S. Code.

In paragraph (b)(6) (previously proposed paragraph (b)(5)) we clarified that the COTP permission must be in writing. In paragraph (b)(10) (previously proposed paragraph (b)(9)) we added a recommendation that anchored vessels maintain a radio watch on VHF channel 13 in addition to the required radio watch on VHF channel 16, to maintain bridge to bridge radio capability as an additional safety measure. In paragraph (b)(13) (previously proposed paragraph (b)(12)) we clarified sentence structure and corrected a typographical error to show that a vessel requests permission “from” the COTP. We also standardized the use of the term “anchorage grounds” throughout the section, replacing various terms such as “zones” and “areas.”

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysis 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 is not significant because there are no fees, permits, or specialized requirements for the maritime industry to utilize these anchorage grounds. The regulation is solely for the purpose of advancing the safety of maritime commerce. We anticipate no negative impact to the fishing community, including dragging, lobstering and shellfishing. This rule does not exclude fishing activity or the transit of vessels in the anchorage grounds. The Coast Guard anticipates the anchorage grounds would cause minimal transit interference, by way of increased vessel anchorage, as these areas have historically been utilized for anchoring with no reports of significant interference with vessel transits through 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: Commercial vessels wishing to transit or fish in the portions of Long Island Sound covered by this regulation. This rule should only have a minimal economic impact on lobster fishing vessels, small commercial vessels and recreational boaters. This conclusion is based upon the fact that the only restriction for entry or use of the anchorages is for all vessels to maintain a distance of 500 yards from an anchored vessel conducting lightering or bunkering operations. The regulation creates seven new anchorage grounds. These areas historically have been, and routinely are, used for anchorage by both deep draft and smaller vessels. The anchorage grounds do not interfere with existing ferry routes between Connecticut and Long Island, New York. The NPRM sought comments from small entities that may be affected by this rulemaking. No comments were received concerning small entities.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM 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 (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)(f), of the Instruction. This rule involves the establishment of general anchorage grounds. 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. Add § 110.146 to read as follows:

§ 110.146

Long Island Sound.

(a) Anchorage grounds.

(1) Bridgeport Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

Latitude	Longitude
41°04′52″ N	73°14′04″ W; thence to
41°03′45″ N	73°14′04″ W; thence to
41°03′45″ N	73°11′39″ W; thence to
41°02′50″ N	73°12′08″ W; thence to
41°02′50″ N	73°16′18″ W; thence to
41°04′52″ N	73°16′18″ W; returning to point of origin.

(2) New Haven North Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

Latitude	Longitude
41°12′18″ N	72°52′36″ W; thence to
41°12′18″ N	72°49′36″ W; thence to
41°10′12″ N	72°48′18″ W; thence to
41°10′12″ N	72°52′12″ W; thence to
41°11′06″ N	72°53′06″ W; returning to point of origin.

(3) New Haven South Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

Latitude	Longitude
41°09′30″ N	72°47′48″ W; thence to
41°08′36″ N	72°47′24″ W; thence to
41°08′36″ N	72°51′24″ W; thence to
41°09′30″ N	72°51′24″ W; returning to point of origin.

(4) New London Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

Latitude	Longitude
41°14′11″ N	072°15′38″ W; thence to
41°15′05″ N	072°16′02″ W; thence to
41°15′39″ N	072°13′21″ W; thence to
41°14′45″ N	072°12′57″ W; returning to point of origin.

(5) Northport Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

Latitude	Longitude
40°58′48″ N	073°16′30″ W; thence to
40°57′42″ N	073°11′42″ W; thence to
40°56′30″ N	073°13′30″ W; thence to
40°57′36″ N	073°18′12″ W; returning to point of origin.

(6) Port Jefferson Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

Latitude	Longitude
41°01′48″ N	073°04′54″ W; thence to
41°01′48″ N	073°00′00″ W; thence to
41°00′18″ N	073°00′00″ W; thence to
41°00′18″ N	073°04′54″ W; returning to point of origin.

(7) Riverhead Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

Latitude	Longitude
41°03′00″ N	072°42′00″ W; thence to
41°04′00″ N	072°36′00″ W; thence to
41°02′00″ N	072°35′24″ W; thence to
41°01′24″ N	072°41′24″ W; returning to point of origin.

(8) All coordinates referenced use datum: NAD 83.

(b) General regulations.

(1) These anchorages are designated for general purposes, but are intended primarily for use by commercial vessels of 300 gross tons and greater and all tank vessels including tank barges. Except in emergencies, commercial vessels of 300 gross tons and greater and all tank vessels, including tank barges, anchoring in the Captain of the Port Long Island Sound Zone inside the line of demarcation shall anchor in the anchorage grounds described above.

(2) Prior to anchoring in the anchorage area, all vessels shall notify the Coast Guard Captain of the Port via VHF-FM Channel 16.

(3) In anchorages where lightering and bunkering operations are authorized, the Captain of the Port must be notified at least four hours in advance of a vessel conducting lightering or bunkering operations, as required by 156.118 of this title. In addition, all lightering and bunkering operations must be done in accordance with 156.120 of this title.

(4) Within an anchorage, navigation is prohibited within 500 yards of an anchored vessel that is conducting bunkering or lightering operations. In accordance with the “Regulated Navigation Area: Long Island Sound Marine Inspection and Captain of the Port Zone,” 33 CFR 165.153(d)(7), navigation also is prohibited within 100 yards of a vessel engaged in commercial service.

(5) Any vessel conducting lightering or bunkering operations shall display by day a red flag at its mast head or at least 10 feet above the upper deck if the vessel has no mast, and by night the flag must be illuminated by spotlight. These signals shall be in addition to day signals, lights, and whistle signals required by rules 30 (33 U.S.C. 2030) and 35 (33 U.S.C. 2035) of the Inland Navigation Rules when at anchor in a general anchorage area.

(6) Except as otherwise provided, a vessel may not occupy an anchorage for more than 30 days, unless the vessel obtains written permission from the Captain of the Port.

(7) If a request is made for the long-term lay up of a vessel, the Captain of the Port may establish special conditions with which the vessel must comply in order for such a request to be approved.

(8) The Captain of the Port may prescribe specific conditions for vessels anchoring within the anchorage grounds described in this section, pursuant to 33 CFR 109.05. These conditions may include, but are not limited to: The number and location of anchors; scope of chain; readiness of the engineering plant and equipment; use of tugs; and requirements for maintaining communication guards on selected radio frequencies.

(9) No vessel in such condition that it is likely to sink or otherwise become a menace or obstruction to navigation or anchorage of other vessels shall occupy an anchorage, except in cases where unforeseen circumstances create conditions of imminent peril to personnel, and then only for such period as may be authorized by the Captain of the Port.

(10) All vessels anchored within the designated anchorage grounds shall comply with the regulations found in 33 CFR 164.19 and shall maintain a continuous bridge watch by a licensed deck officer proficient in English, monitoring VHF-FM Channel 16. This individual shall confirm that the ship's crew performs frequent checks of the vessel's position to ensure the vessel is not dragging anchor. A second VHF-FM radio monitoring Channel 13 is strongly recommended.

(11) Anchors shall be placed well within the anchorage grounds so that no portion of the hull or rigging will at any time extend outside of the anchorage area.

(12) The Coast Guard Captain of the Port may close the anchorage area and direct vessels to depart the anchorage during periods of adverse weather or at other times as deemed necessary in the interest of port safety and security.

(13) Any vessel anchored in these grounds must be capable of getting underway if ordered by the Captain of the Port and must be able to do so within two (2) hours of notification by the Captain of the Port. If a vessel will not be able to get underway within two (2) hours of notification, permission must be requested from the Captain of the Port to remain in the anchorage. No vessel shall anchor in a “dead ship” status (propulsion or control unavailable for normal operations) without prior approval of the Captain of the Port.

(14) Fixed moorings, piles or stakes are prohibited.

Dated: September 17, 2010.

D.A. Neptun,

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