E8-11868. Safety Zone: Ambrose Light, Offshore Sandy Hook, NJ, Atlantic Ocean

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone in the waters of the Atlantic Ocean within a 250 yard radius of Ambrose Light (LLNR 720) located at position 40°27′00″ N, 073°48′00″ W, approximately 8.35 nautical miles east of Sandy Hook, NJ. This safety zone is necessary to provide for the safety of life, property and the environment on navigable waters of the United States from the hazards associated with the damaged structure and during survey and debris removal at the charted location of Ambrose Light that was recently damaged. This safety zone is intended to keep vessels a safe distance from Ambrose Light during the survey and debris removal operations.

DATES:

This rule is effective from 11:59 p.m. on May 5, 2008 through 11:59 p.m. on November 1, 2008.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0373 and are available online at www.regulations.gov. They are also available for inspection or copying at two locations: 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, and at Coast Guard Sector New York, Room 209, Staten Island, NY 10305 between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call Lieutenant Commander Mike McBrady, Waterways Management Division, Coast Guard Sector New York [phone]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. A notice and comment period was not held for this rulemaking because the safety zone is needed in response to an emergency situation created when the Ambrose Light was struck and damaged by a vessel. A survey and debris removal operations are needed immediately to remove this hazard to navigation. Delaying the necessary survey and debris removal in order to conduct a notice and comment period would be contrary to the public interest.

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 as immediate action is needed to protect vessels transiting the area from the hazards associated with the damaged light tower, area survey, and debris removal operations. Any delay in implementing this rule would be contrary to public interest since immediate action is needed to prevent vessels from transiting the area so as to avoid the potential hazards associated with the unstable light, the possibility of it collapsing, or a vessel grounding on the remains of Ambrose Light (LLNR 720).

Background and Purpose

On Saturday, November 3, 2007, the M/T AXEL SPIRIT allided with Ambrose Light (LLNR 720) in position 40°27′00″ N, 073°48′00″ W approximately 8.35 nautical miles east of Sandy Hook, NJ. Initial damage assessment indicates that the Ambrose Light is no longer watching properly and in danger of collapse, creating an additional hazard to vessels operating in the area. This safety zone is being created in response to this emergency situation in order to keep mariners away from the hazards associated with the damaged structure and from the hazards associated with survey and debris removal operations.

On November 26, 2007 we published a Temporary Final Rule in the Federal Register (72 FR 65886) titled “Safety Zone: Ambrose Light, Offshore Sandy Hook, NJ, Atlantic Ocean” establishing a temporary safety zone around Ambrose Light after it was initially struck. This safety zone was effective from November 5, 2007 until May 5, 2008. The Coast Guard's Civil Engineering Unit in Providence, Rhode Island does not expect to award the contract to remove the tower and associated debris until on, or about, May 1, 2008. It is expected that the removal operations will take about 75 days. This 180-day temporary rulemaking will allow for the safe removal and provide for any expected delays due to weather, equipment malfunctions, etc. If the survey and debris removal is completed before November 1, 2008, the Coast Guard will cease enforcement of the safety zone.

Discussion of Rule

This rule will provide for the safety of vessel traffic in and around Ambrose Light (LLNR 720). This regulation establishes a temporary safety zone on the navigable waters of the Atlantic Ocean within a 250 yard radius of position 40°27′00″ N, 73°48′00″ W, approximately 8.35 nautical miles east of Sandy Hook, NJ. The rule described herein prohibits the transit of vessels through the safety zone unless specifically authorized by the Captain of the Port, New York. This safety zone is in effect from 11:59 p.m. on May 5, 2008 until 11:59 p.m. on November 1, 2008. The zone will be enforced during the entire effective period unless the survey, tower and debris removal operation is completed prior to November 1, 2008.

Marine traffic may transit safely outside of the zone during the enforcement period. The Captain of the Port New York will notify the maritime community of the safety zone by publication in the Local Notice to Mariners, Safety Voice Broadcasts, and on the internet at http://homeport.uscg.mil/​newyork.

Regulatory Evaluation

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 will be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This regulation may have some impact on the public, but the potential impact will be minimized for the following reason: Vessels may transit around the 250 yard safety zone.

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 within a 250 yard radius of Ambrose Light (LLNR 720) at 40°27′00″ N, 73°48′00″ W approximately 8.35 nautical miles east of Sandy Hook, NJ. However, this safety zone is not expected to have a significant economic impact on a substantial number of small entities as vessels will be able to transit around the 250 yard safety zone.

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 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 Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This rule fits category (34)(g) as it establishes a safety zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

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

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; 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.

2. Add temporary § 165.T01-165 to read as follows:

§ 165.T01-165

Safety Zone: Ambrose Light, Offshore Sandy Hook, NJ, Atlantic Ocean.

(a) Location. The following area is a Safety Zone: All navigable waters of the Atlantic Ocean within a 250 yard radius of Ambrose Light (LLNR 720) at position 40°27′00″ N, 73°48′00″ W, approximately 8.35 nautical miles east of Sandy Hook, NJ.

(b) Effective Dates. This regulation is effective from 11:59 p.m. on May 5, 2008 to 11:59 p.m. on November 1, 2008.

(c) Definitions. The following definition applies to this section: On-scene representative, means any commissioned, warrant, and petty officers of the Coast Guard on board Coast Guard, Coast Guard Auxiliary, and local, state, and federal law enforcement vessels who have been authorized to act on the behalf of the Captain of the Port, New York.

(d) Regulations. (1) The general regulations contained in 33 CFR 165.23 apply.

(2) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port New York, or his on-scene representative.

Dated: May 5, 2008.

R.R. O'Brien, Jr.,

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