02-18921. Safety Zone; East River, Manhattan, NY

AGENCY:

Coast Guard, DOT.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to establish a safety zone in a portion of the waters of the East River, Western Channel, between Manhattan and Roosevelt Island, NY. This action is necessary to provide for the safety of construction crews and motorists during rehabilitation of a portion of the Franklin Delano Roosevelt (FDR) Drive between East 56th Street and East 63rd Street in Manhattan, NY. This action is intended to prevent vessels from the hazards associated with construction, operation and disassembly of a temporary Outboard Detour Roadway and its protective fendering system, and to minimize the risk of allision with those structures, once constructed, by restricting marine traffic within the zone.

DATES:

Comments and related material must reach the Coast Guard on or before August 16, 2002.

ADDRESSES:

You may mail comments and related material to the Waterways Oversight Branch (CGD01-02-090), Coast Guard Activities New York, 212 Coast Guard Drive, Staten Island, New York 10305. The Waterways Oversight Branch of Coast Guard Activities New York maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble, will become part of this docket and will be available for inspection or copying at Room 202, Coast Guard Activities New York, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. Comments can also be made via electronic mail to: Actny-wwm/wob/[e-mail].

FOR FURTHER INFORMATION CONTACT:

Lieutenant Luis E. Martinez, Waterways Oversight Branch, Coast Guard Activities New York, at [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the document number for this rulemaking (CGD01-02-090), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. Persons wanting acknowledgment of receipt of comments should enclose a stamped self-addressed postcard or envelope. The Coast Guard will consider all comments received during the comment period. We may change this proposed rule in view of the comments.

Public Meeting

The Coast Guard does not now plan to hold a public meeting. Persons may request a public meeting by writing to the Waterways Oversight Branch at the address under ADDRESSES explaining why one would be beneficial. If we determine that one will aid this rulemaking, we will hold a public meeting at a time and place announced by a later notice in the Federal Register.

Background and Purpose

The New York State Department of Transportation (NYSDOT) is undertaking the rehabilitation of the FDR Drive in Manhattan, NY. The project is scheduled to begin on September 1, 2002 and to continue until approximately June 2007. It will include the building of a temporary Outboard Detour Roadway (causeway) adjacent to the northbound lanes of a portion of the FDR Drive that will provide three lanes of motor vehicle traffic over the Western Channel of the East River between East 56th Street and East 63rd Street in Manhattan.

The temporary Outboard Detour Roadway will be protected from marine traffic interference by a fendering system positioned adjacent to and just outside the western edge of the navigable channel in the East River's Western Channel. The fendering system will run the length of the Outboard Detour Roadway. It is designed to withstand an allision by a vessel displacing 38,000 long tons (38,610 metric tons) striking at a speed of 6.8 knots and a 7.5 degree angle of approach.

The proposed rule would exclude all vessels from the immediate vicinity of the Outboard Detour Roadway during the construction, operation and disassembly of the structure and its protective fendering system. By excluding marine traffic, the zone would protect maritime users from the hazards associated with the construction, operation and disassembly of those structures and protect Outboard Detour Roadway users from the risk of vessel allision or interference with that structure. The proposed safety zone would commence on September 1, 2002.

In order to provide further protection for roadway users, we contemplate the subsequent establishment of a Regulated Navigation Area (RNA) in the Western Channel of the East River between 23rd Street, Manhattan (Poorhouse Flats Range) and East 96th Street, Manhattan (Hell's Gate). No vessel with a displacement of greater than 38,000 long tons would be permitted to enter the RNA without tugboat assistance. That RNA will be the subject of separate rulemaking process as we draw closer to the projected opening of the Outboard Detour Roadway in 2004.

Discussion of Proposed Rule

The proposed rule would establish a safety zone in the waters of the East River, Western Channel, extending from the Manhattan riverbank to the western boundary of the federal navigable channel and running approximately along the length of the projected Outboard Detour Roadway's protective fendering system. More specifically, the zone would include all waters enclosed by a line connecting the following points: beginning on the Manhattan riverbank at a point 40°45′35.7″ N, 073°57′25.2″ W (Point A), thence southeasterly to a point 40°45′34.6″ N, 073°57′24.4″ W (Point B), thence southwesterly along the western boundary of the Federal navigable channel to a point 40°45′10.1″ N, 073°57′46.6″ W (Point C), then northwesterly to the Manhattan riverbank at a point 40°45′10.5″ N, 073°57′48.9″ W (Point D), thence northeasterly along the riverbank to the place of beginning (Point A).

The safety zone would protect mariners from hazards associated with the construction, operation and disassembly of the Outboard Detour Roadway and its protective fendering system and would help preserve the security and integrity of those structures. No person would be allowed to enter or remain in the safety zone at any time without the permission of the Captain of the Port. Every person or vessel in a safety zone would be required to obey any direction or order of the Captain of the Port.

The safety zone would commence on September 1, 2002, when construction begins on the temporary Outboard Detour Roadway. Action would be taken to withdraw the rule when the safety zone is no longer required. On the basis of information currently available to the Coast Guard, we project that the safety zone would be necessary until approximately June 2007.

Regulatory Evaluation

This proposed 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 Transportation (DOT) (44 FR 11040; February 26, 1979). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

The effect of this proposed rule would not be significant as it would not prevent maritime traffic from navigating the East River, Western Channel. The proposed safety zone would merely prevent vessels from entering a relatively small area of water west of the navigable channel to prevent interference with the construction, operation and disassembly of an Outboard Detour Roadway and its protective fendering system.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to enter a small portion of the East River, Western Channel, during the times the proposed safety zone would be in effect.

This proposed rule would not have a significant economic impact on a substantial number of small entities because it will not prevent maritime traffic from navigating the East River. The proposed safety zone would merely prevent vessels from entering a relatively small area of water west of the navigable channel in order to prevent interference with the construction, operation and disassembly of an Outboard Detour Roadway and its protective fendering system.

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 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant L.E. Martinez, Waterways Oversight Branch, Coast Guard Activities New York [phone].

Collection of Information

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

We have analyzed this proposed rule under Executive Order 13132, Federalism, and have determined that this rule does not have implications for federalism under that Order.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.

Taking of Private Property

This proposed rule would 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 proposed 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 proposed 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 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. A rule with tribal implications has 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.

Environment

The Coast Guard considered the environmental impact of this proposed rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.1C, this proposed rule is categorically excluded from further environmental documentation. This proposed rule fits paragraph 34(g) as it establishes a safety zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

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.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Security measures
• Waterways

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; 49 CFR 1.46.

2. Add a new § 165.167 to read as follows:

§ 165.167

Safety Zone; East River Western Channel, Manhattan, NY.

(a) Location. The waters of the East River enclosed by a line connecting the following boundaries are established as a safety zone: beginning on the Manhattan riverbank at a point 40°45′35.7″ N, 073°57′25.2″ W (Point A), thence southeasterly to a point 40°45′34.6″ N, 073°57′24.4″ W (Point B), thence southwesterly along the western boundary of the federal navigable channel to a point 40°45′10.1″ N, 073°57′46.6″ W (Point C), then northwesterly to the Manhattan riverbank at a point 40°45′10.5″ N, 073°57′48.9″ W (Point D), thence northeasterly along the riverbank to the place of beginning (Point A). All coordinates are North American Datum 1983.

(b) Regulations. The general regulations contained in § 165.23 of this part apply.

Dated: July 18, 2002.

C.E. Bone,

Captain, Coast Guard, Captain of the Port, New York.