2011-8827. Anchorage Regulations; Port of New York

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is revising Anchorage Ground No. 19 located east of the Weehawken-Edgewater Federal Channel on the Hudson River. The revision is necessary to facilitate safe navigation and provide safe and secure anchorages for vessels operating in the area. This action is intended to increase the safety of life and property of both the anchored vessels and those operating in the area as well as to provide for the overall safe and efficient flow of commerce.

DATES:

This rule is effective May 13, 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-2008-1082 and are available online by going to http://www.regulations.gov,, inserting USCG-2008-1082 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 Mr. Jeff Yunker, Coast Guard Sector New York, Waterways Management Division; 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 September 18, 2009, we published a notice of proposed rulemaking (NPRM) entitled Anchorage Regulations; Port of New York in the Federal Register (74 FR 47906). We received one comment on the NPRM. No public meeting was requested and none was held. On April 28, 2010, we published a supplemental notice of proposed rulemaking (SNPRM) entitled Anchorage Regulations; Port of New York in the Federal Register (75 FR 22323). We received one comment on the SNPRM. A public meeting was requested by the New York City Department of Parks and Recreation (NYC Parks) but the Coast Guard determined a public meeting was not necessary in this case. Instead, a meeting with representatives from the NYC Parks, Sandy Hook Pilots Association, and U.S. Army Corps of Engineers New York District was held on August 31, 2010, to discuss their comment in relation to commercial vessel operations in this area of the Hudson River. The results of the meeting are discussed in the Discussion of Comments and Changes section.

Basis and Purpose

The Hudson River Pilots Association, through the Port of New York/New Jersey Harbor Safety, Navigation and Operations Committee, has had several discussions with the Coast Guard over the years examining the possibility of relocating Anchorage Ground No. 19; two years ago they requested that the Coast Guard formally revise the boundaries of Anchorage Ground No. 19, which is located on the Hudson River, east of the Weehawken-Edgewater Federal Channel and south of the George Washington Bridge.

Due to severe recurring shoaling within the Weehawken-Edgewater Federal Channel, the Hudson River Pilots requested and received authorization from the Coast Guard and Army Corps of Engineers (ACOE) to pilot vessels through the deeper and safer water located within the boundaries of Anchorage Ground No. 19.

Background

Due to shoaling, the March 2007 ACOE survey verified a controlling depth of 27 feet in the right outside quarter of the Weehawken-Edgewater Federal Channel where vessels bound for ports north of New York City would have to transit. As published by the ACOE Institute for Water Resources, vessels with drafts of up to 34 feet routinely transit the Hudson River. In calendar year 2006, there were 6,562 transits on the Hudson River between the mouth of the Harlem River and Waterford, NY by vessels with a draft of 27 feet or greater. In 2007, the number of transits was 4,120. In 2008, there were 120 transits. Vessels with a draft of 27 feet or greater would be required to transit through the deeper water which is within the current boundaries of Anchorage Ground No. 19.

Anchorage Ground No. 19 is the closest Anchorage Ground available for use when there is no space for temporary anchoring within the Upper New York Bay Anchorage Grounds. Hence, these vessels transit to Anchorage Ground No. 19 to await a berth, or orders, to minimize fuel consumption and provide an orderly flow of commerce within the harbor and the New England region. Tug and barge traffic within the harbor has increased 37% since 1991, concurrently increasing use of the anchorage.

On October 14, 2008, the Coast Guard Captain of the Port New York issued an Advisory Notice notifying the maritime community that, in accordance with 33 CFR 110.155(c)(5)(i), vessels would only be allowed to anchor on the western boundary of Anchorage Ground No. 19. This temporary solution was necessary to facilitate deep draft vessel transits through the eastern portion of Anchorage Ground No. 19.

On September 18, 2009, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) titled “Anchorage Regulations; Port of New York” (Docket number USCG-2008-1082) in the Federal Register (74 FR 47906). The proposal sought to amend Anchorage Ground No. 19 by dividing it into two separate anchorages (Anchorage Ground No. 19 East and Anchorage Ground No. 19 West), thereby relocating the majority of the anchorage area to the western side of the Hudson River.

The relocation of the anchorage would allow deep draft vessels to transit the deeper water without having to transit through the existing Anchorage Ground No. 19.

In that NPRM, it was stated that the ACOE would relocate the Weehawken-Edgewater Federal Channel to the east of its current location and the Coast Guard would relocate Anchorage Ground No. 19 to the west of its current location.

After the publication of the NPRM, the ACOE advised the Coast Guard that it did not intend to seek Congressional action to de-authorize the Weehawken-Edgewater Federal Channel. However, the ACOE also advised that it does not object to the Coast Guard establishing an Anchorage Ground in the existing Weehawken-Edgewater Federal Channel.

Consequently, to facilitate safe navigation of deep draft vessels, the Coast Guard published a supplemental notice of proposed rulemaking (SNPRM) titled “Anchorage Regulations; Port of New York” in the Federal Register on April 28, 2010 (75 FR 22323) revising its proposal to disestablish Anchorage Ground No. 19 and establish two separate anchorage grounds, Anchorage Ground No. 19 East and Anchorage Ground No. 19 West. This would be accomplished by dividing Anchorage Ground No. 19 into an east and a west portion and relocating the majority of the anchorage area (new Anchorage Ground No. 19 West) from the eastern half of the Hudson River to the western half closer to the New Jersey shore (over the Weehawken-Edgewater Federal Channel). The following graphics display the current boundary of Anchorage Ground No. 19 and the revised boundaries of Anchorage Grounds No. 19 East and No. 19 West:

Disestablishing Anchorage Ground No. 19 and establishing Anchorage Ground No. 19 East and Anchorage Ground No. 19 West creates a 400 yard wide area of deeper water between the newly established anchorage grounds. This change allows deep draft vessels to transit the deeper water of the Hudson River without having to transit through an existing anchorage ground.

The Weehawken-Edgewater Federal Channel is authorized by Congress, and constructed and maintained by the ACOE. The ACOE has advised the Coast Guard that no portion of the Weehawken-Edgewater Federal Channel will be relocated in conjunction with the reapportionment, relocation and establishment of Anchorage Ground No. 19 East and West. The ACOE has further advised that establishment of an anchorage ground in the Weehawken-Edgewater Federal Channel is not expected to impede navigation or result in a need to maintain channel depth because the Weehawken-Edgewater Federal Channel currently supports no commercial vessel traffic.

According to the ACOE the Weehawken-Edgewater Federal Channel was originally intended to support commercial vessel traffic on the New Jersey waterfront in the vicinity of the Channel. However, due to changes in shoreline usage from industrial to residential and recreational, the original intent of the Channel no longer exists. As a result there has not been a need to dredge the Weehawken-Edgewater Federal Channel segment to its authorized depth since it was last dredged in 1994.

The ACOE further advised that it does not appear likely that a need will arise in the foreseeable future to maintain the channel for commercial vessel traffic intending to access New Jersey waterfront and shore facilities. However, should a need recur in the future to accommodate commercial traffic, the use of the areas as anchorage grounds would be re-evaluated.

In the interest of safe navigation and to minimize confusion, the ACOE and the USCG will request that the National Oceanic and Atmospheric Administration (NOAA) remove the Weehawken-Edgewater Federal Channel designation from NOAA charts. In addition, the Coast Guard will request chart corrections removing the Anchorage Ground No. 19 boundary line designation and adding the boundary lines for the revised Anchorage Ground No. 19 East and Anchorage Ground No. 19 West.

Discussion of Comments and Changes

The Coast Guard received one comment on the NPRM from the U.S. Army Corps of Engineers (ACOE). In that NPRM, the Coast Guard stated that the ACOE would relocate the Weehawken-Edgewater Channel to the east of its current location and the Coast Guard would relocate Anchorage Ground No. 19 to the west of its current location.

After the publication of the NPRM, the ACOE advised the Coast Guard that it did not intend to seek Congressional action to de-authorize the Weehawken-Edgewater Channel. However, the ACOE also advised that it did not object to the Coast Guard establishing an Anchorage Ground in the existing Weehawken-Edgewater Channel.

Consequently, the Coast Guard revised its proposal and published a Supplemental Notice of Proposed Rulemaking (SNPRM) seeking to disestablish Anchorage Ground No. 19 and establish two separate anchorage grounds, Anchorage Ground No. 19 East and Anchorage Ground No. 19 West.

The Coast Guard received one comment on the SNPRM from the New York City Parks and Recreation Department (NYC Parks).

NYC Parks requested clarification that this rulemaking would not impact their recreational mooring fields along the Manhattan shoreline north and south of the 79th Street Boat Basin. NYC Parks is still authorized to administer the mooring fields along the Manhattan shoreline; therefore, the use of these mooring fields will not be affected by this rule. In addition, the Coast Guard will submit chart corrections to be published to identify these mooring fields on government navigation charts.

NYC Parks further requested that the two mooring fields be designated as special anchorage areas as part of the current rule. The Coast Guard is currently reviewing NYC Parks' request to designate the two mooring fields as special anchorage areas; however any designation of the two mooring fields as special anchorage areas would be done as part of a separate rulemaking process.

NYC Parks requested clarification that this rulemaking would potentially eliminate 452 acres of open vessel anchorage area and eliminate the mooring fields north and south of the 79th Street Boat Basin. As stated above the use of the NYC Parks mooring fields will not be affected by this rule. The 452 acres of Anchorage Ground No. 19 being disestablished were intended for the use of commercial shipping and not recreational vessels that use the 79th Street Boat Basin and mooring fields along the Manhattan shoreline.

NYC Parks commented that this rulemaking would potentially jeopardize their ability to fund and service the marina due to the removal of their mooring fields. This rulemaking will not potentially jeopardize NYC Parks' ability to fund and service the marina due to the removal of the mooring fields because the mooring fields are not being removed or impacted in any way.

NYC Parks commented that Riverside Park concessions would be negatively impacted, and Riverside Park itself would lose one of its engaging and popular features. Riverside Park will not be impacted by this rulemaking as NYC Parks is still authorized to administer their mooring fields. Marine events and recreational boating usage will continue to be administered on a not to interfere basis with commercial shipping and Tugs/Barges as stated below.

NYC Parks requested that these rules be revised to protect the right of recreational boaters to use these waters and that the mooring fields be designated as Special Anchorage Areas for these purposes. NYC Parks is still authorized to administer their two mooring fields along the Manhattan shoreline, north and south of the 79th Street Boat Basin. Chart corrections will be submitted by the Coast Guard to display these mooring fields on the navigation charts. In addition, the USCG is reviewing NYC Parks request to establish two Special Anchorage Areas north and south of the 79th Street Boat Basin.

NYC Parks commented that the transit of commercial tugs and barges in closer proximity to the 70-year-old boat basin and mooring fields would exacerbate the damages and impacts caused by large wakes of passing vessels on the Hudson River. At the meeting held with NYC Parks on August 13, 2010, the Sandy Hook Pilots representative stated that they have been piloting vessels along the current route, east of the Weehawken-Edgewater Federal Channel, through Anchorage Ground No. 19, on a continual basis since before the 1970s. In addition, tugs and barges have always been authorized to transit through Anchorage Ground No. 19, whether to anchor in a position near the 79th Street Boat Basin, or to continue their transit through the Hudson River. Since under this rule tugs and barges will be anchoring further away from the 79th Street Boat Basin and deep draft transits through the area are down from previous years, as noted by the ACOE Institute for Water Resources, the Coast Guard believes that this rule will alleviate impacts from wakes on the boat basin and mooring field.

NYC Parks commented that this revision may seriously impact established marine events and a growing number of recreational users in the area. As previously stated the Sandy Hook Pilots have been using this transit route through the current Anchorage Ground No. 19 since before the 1970s. Additionally, the area was always available for use as an Anchorage Ground by vessels not constrained by draft. Marine Event permits have been issued for events held in the Anchorage Ground as long as the participants abided by the Inland Navigation Rules and did not interfere with commercial navigation within the Anchorage Ground.

As previously stated Anchorage Ground No. 19 was established over 20 years prior to the 79th Street Boat Basin and mooring fields. Due to the fluctuation of commercial vessel traffic on the Hudson River, and based upon changing economic conditions, demand for home heating oil, etc, the USCG may not always be able to approve marine event applications in this area of the Hudson River regardless of the Anchorage Ground configuration.

NYC Parks requested a public meeting be held. A public meeting was not held since the written comments clearly expressed the views of the commenter and oral presentations would not aid the rulemaking process.

Finally, this rule intends to reflect and formalize past and current vessel navigation practices through the waters within Anchorage Ground No. 19.

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.

Executive Order 12866 and Executive Order 13563

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, 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 minimal additional cost impacts to the industry because this rule is not imposing fees, permits, or specialized requirements for the maritime industry to utilize these anchorage areas. This rule is revising the Anchorage Ground No. 19 in order to facilitate safe navigation and provide safe and secure anchorages for vessels operating in the area. This revision would allow deep draft vessels to transit the deeper water without having to transit through an anchorage ground. This would improve safety for small vessels using the anchorage grounds and would facilitate the transit of deep draft vessels.

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 vessels intending to transit through the Anchorage Grounds 19 East and 19 West. Vessels intending to anchor in the current Anchorage Ground No. 19 will still be able to anchor in the revised Anchorage Ground No. 19 East or No. 19 West. NYC Parks will still be authorized to administer recreational mooring fields located along the Manhattan shoreline, north and south of the 79th Street Boat Basin. The labeling of these mooring fields on Government navigation charts will create a positive impact in the area by increasing awareness of the location of smaller recreational vessels. Additionally, the recreational vessels will no longer have to maneuver around larger anchored vessels when entering, or departing, the 79th Street Boat Basin or mooring fields.

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 as this rule involves changing the size of an existing anchorage ground and dividing it into two separate anchorage areas resulting in a reduction in the overall size of the anchorage areas. 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 is amending 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. Amend § 110.155, by revising paragraph (c)(5) to read as follows:

§ 110.155

Port of New York.

* * * * *

(c) * * *

(5) Anchorages No. 19 East and 19 West.

(i) Anchorage No. 19 East. All waters of the Hudson River bound by the following points: 40°49′42.6″ N, 073°57′14.7″ W; thence to 40°49′45.9″ N, 073°57′22.0″ W; thence to 40°49′52.0″ N, 073°57′22.0″ W; thence to 40°50′08.3″ N, 073°57′10.8″ W; thence to 40°50′55.4″ N, 073°56′59.7″ W; thence to 40°51′02.5″ N, 073°56′57.4″ W; thence to 40°51′00.8″ N, 073°56′49.4″ W; thence along the shoreline to the point of origin.

(ii) Anchorage No. 19 West. All waters of the Hudson River bound by the following points: 40°46′56.3″ N, 073°59′42.2″ W; thence to 40°47′36.9″ N, 073°59′11.7″ W; thence to 40°49′31.3″ N, 073°57′43.8″ W; thence to 40°49′40.2″ N, 073°57′37.6″ W; thence to 40°49′52.4″ N, 073°57′37.6″ W; thence to 40°49′57.7″ N, 073°57′47.3″ W; thence to 40°49′32.2″ N, 073°58′12.9″ W; thence to 40°49′00.7″ N, 073°58′33.1″ W; thence to 40°48′28.7″ N, 073°58′53.8″ W; thence to 40°47′38.2″ N, 073°59′31.2″ W; thence to 40°47′02.7″ N, 073°59′57.4″ W; thence to the point of origin.

(iii) The following regulations apply to 33 CFR 110.155(c)(5)(i) and (ii):

(A) No vessel may conduct lightering operations in these anchorage grounds without permission from the Captain of the Port. When lightering is authorized, the Captain of the Port New York must be notified at least four hours in advance of a vessel conducting lightering operations as required by 156.118 of this title.

(B) Any vessel conducting lightering or bunkering operations shall display by day a red flag (46 CFR 35.30-1; Pub 102; International Code of Signals signaling instructions) 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 as required by rules 30 (33 U.S.C 2030 and 33 CFR 83.30) and 35 (33 USC 2035 and 33 CFR 83.35) of the Inland Navigation Rules when at anchor in a general anchorage area.

(C) Within an anchorage, fishing and navigation are prohibited within 500 yards of an anchored vessel displaying a red flag.

(D) These anchorage grounds are only authorized for use by tugs and/or barges.

(E) No vessel may occupy this anchorage ground for a period of time in excess of 96 hours without prior approval of the Captain of the Port.

(F) No vessel may anchor in Anchorage No. 19 East or No. 19 West without permission from the Captain of the Port.

(G) Each vessel shall report its position within Anchorage No. 19 East or No. 19 West to the Captain of the Port immediately after anchoring.

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

* * * * *

Dated: March 28, 2011.

Daniel A. Neptun,

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