[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Proposed Rules]
[Pages 5743-5747]
[FR Doc No: 2012-2550]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 110

[USCG-2011-0563]
RIN 1625-AA01

Special Anchorage Areas; Port of New York, NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to (1) establish two special
anchorage areas along the Hudson River adjacent to Manhattan at the
79th Street Boat Basin; (2) establish two special anchorage areas on
Sandy Hook Bay at Atlantic Highlands, NJ; (3) disestablish the western
special anchorage area in Sheepshead Bay, NY; and (4) disestablish the
Captain of the Port New York Commercial Mooring Buoy permit regulations
and table displaying the mooring anchor, chain, and pendant
requirements. This proposed action is necessary to facilitate safe
navigation in these areas and provide safe and secure anchorages for
vessels not more than 65 feet in length. This action is intended to
increase the safety of life and property in New York City and Atlantic
Highlands, NJ, improve the safety of anchored vessels, and provide for
the overall safe and efficient flow of vessel traffic and commerce.

DATES: Comments and related material must be received by the Coast
Guard on or before April 6, 2012. Requests for public meetings must be
received by the Coast Guard on or before February 27, 2012.

ADDRESSES: You may submit comments identified by docket number USCG-
2011-0563 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax:<PHONE_NUMBER>.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The telephone
number is<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or email Mr. Jeff Yunker, Waterways Management Division,
Coast Guard Sector New York; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>or Lieutenant Junior Grade Isaac Slavitt,
Waterways Management Division at Coast Guard First District, telephone
(617) 223-8385, email<EMAIL_ADDRESS>If you have questions
on viewing or submitting material to the docket, call Renee V. Wright,
Program Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this
rulemaking (USCG-2011-0563), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online (via http://www.regulations.gov) or by fax, mail, or hand
delivery, but please use only one of these means. If you submit a
comment online via http://www.regulations.gov, it will be considered
received by the Coast Guard when you successfully transmit the comment.
If you fax, hand deliver, or mail your comment, it will be considered
as having been received by the Coast Guard when it is received at the
Docket Management Facility. We recommend that you include your name and
a mailing address, an email address, or a telephone number in the body
of your document so that we can contact you if we have questions
regarding your submission.
    To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Proposed Rule'' and insert ``USCG-2011-0563'' in the ``Keyword'' box.
Click ``Search'' then click on the balloon shape in the ``Actions''
column. If you submit your comments by mail or hand delivery, submit
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable
for copying and electronic filing. If you submit comments by mail and
would like to know that they reached the Facility, please enclose a
stamped, self-addressed postcard or envelope. We will consider all
comments and material received during the comment period and may change
the rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``USCG-2011-0563'' and click
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column.
You may also visit the Docket Management Facility in Room W12-140 on
the ground floor of the Department of Transportation West Building,
1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. We have an
agreement with the Department of Transportation to use the Docket
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor

union, etc.). You may review a Privacy Act notice regarding our public
dockets in the January 17, 2008, issue of the Federal Register (73 FR
3316).

Public Meeting

    We do not now plan to hold a public meeting. But, you may submit a
request for a public meeting using one of the four methods specified
under ADDRESSES. Please explain why you believe a public meeting would
be beneficial. If we determine that a public meeting would aid this
rulemaking, we will hold one at a time and place announced by a later
notice in the Federal Register.

Basis and Purpose

    The legal basis for the proposed rule is 33 U.S.C. 471, 1221
through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; and Department of
Homeland Security Delegation No. 0170.1, which collectively authorize
the Coast Guard to define anchorage grounds.
    The proposed rule is intended to reduce the risk of vessel
collisions by establishing two special anchorage areas in the Hudson
River near the 79th Street Boat Basin, Manhattan, NY; establishing two
special anchorage areas in Sandy Hook Bay at Atlantic Highlands, NJ;
requiring all vessels and anchors to remain entirely within the
northern and southern special anchorage areas in Sheepshead Bay, NY;
and reducing the illegal mooring of vessels and dinghies to New York
City property by disestablishing the western special anchorage area at
Sheepshead Bay, NY. The proposed rule is also intended to reduce the
confusion among professional and recreational mariners by
disestablishing the Captain of the Port New York Commercial Mooring
Buoy permit regulations and Table Sec.  110.155(l)(7) displaying the
mooring anchor, chain, and pendant requirements. These regulations are
in conflict with current U.S. Army Corps of Engineers Federal
regulations as well as New Jersey and New York local and State laws and
regulations.

Discussion of Proposed Rule

    The Coast Guard proposes to establish two new special anchorage
areas on the Hudson River at the request of New York City Parks and
Recreation Department (NYC PARKS).
    NYC PARKS requested these particular areas be designated as special
anchorage areas as they have been historically used as mooring fields
by recreational vessels, are no longer within the boundaries of
Anchorage Ground 19 East or 19 West decreasing the knowledge of their
presence to other mariners transiting the area, and are within waters
under the jurisdiction of New York City.
    The proposed rule would establish a special anchorage area to the
north and south of the 79th Street Boat Basin along the Manhattan
shoreline of the Hudson River, maintaining anchorage for approximately
126 vessels in two currently designated mooring fields. The first of
these areas is approximately 530 yards by 170 yards, encompasses 18.40
square acres, and is about 160 yards south of the 79th Street Boat
Basin. The second of these areas is approximately 2,630 yards by 160
yards, encompasses 89.90 square acres, and is north and adjacent to the
79th Street Boat Basin.
    The Coast Guard proposes to establish two new special anchorage
areas on Sandy Hook Bay within the boundary of the Atlantic Highlands
Municipal Harbor. The Borough of Atlantic Highlands requested these
particular areas be designated as special anchorage areas because they
have been historically used as mooring fields by recreational vessels,
are within waters under the jurisdiction of the Borough of Atlantic
Highlands, and would allow tenants to leave their anchor lights off
during hours of darkness. The majority of their tenants do not stay on
their vessels at night. Leaving their lights on overnight could result
in dead batteries and inoperable bilge pumps, which could in turn
result in vessels taking on water and sinking, disrupting other tenants
in the area.
    The proposed rule would establish two special anchorage areas
inside the charted breakwater at Atlantic Highlands, NJ, on Sandy Hook
Bay, maintaining anchorage for approximately 195 vessels in two
currently designated mooring fields. The first area is approximately
1,060 yards by 250 yards, encompasses about 51.7 square acres, and is
about 100 yards north of the Atlantic Highlands Municipal Harbor. The
second area is approximately 465 yards by 215 yards, encompasses about
19.7 square acres, and is east of and adjacent to the Atlantic
Highlands Municipal Harbor.
    The proposed rule would establish a new requirement that all
vessels and anchors remain within the northern and southern special
anchorage areas in Sheepshead Bay, NY at all times. During times of
high winds, vessels moored near the edge of these special anchorage
areas were observed swinging out into Sheepshead Bay, interfering with
the transit of chartered fishing boats to and from their NYC-managed
piers to the west. Since moored vessels in a special anchorage area are
exempt from the Inland Rules of the Road [Rule 30 and Rule 35 (33 CFR
83)], vessels swinging outside the special anchorage area boundaries
create a high risk of collision with larger charter fishing vessels and
event vessels that transit past these special anchorage areas,
especially at night and during times of inclement weather. Also, when
larger charter fishing vessels and event vessels maneuver to avoid
colliding with recreation vessels that swing outside the special
anchorage area, it creates a hazardous, close-quarters situation with
two categories of vessels:
    (1) Other larger charter fishing vessels and event vessels
operating between these two special anchorage areas, and
    (2) Recreational vessels swinging outside of the opposite special
anchorage area.
    The Coast Guard also proposes to disestablish the western special
anchorage area in Sheepshead Bay, NY at the request of NYC Parks. NYC
Parks reports that vessels are using this special anchorage area to
circumvent the guest mooring options maintained by the Sheepshead Bay
boating clubs under the authority of NYC Parks. NYC Parks reports that
these vessel owners secure their dinghies to the surrounding sea walls,
commercial piers, or pedestrian foot bridge while the owners go ashore.
This is prohibited by New York City laws and regulations and the
dinghies have been confiscated by NYC Parks. This area is approximately
375 yards by 80 yards that encompasses about 6.27 square acres and is
near the western end of Sheepshead Bay.
    This rule would disestablish the Captain of the Port New York
Commercial Mooring Buoy permit regulations at 33 CFR 110.155(l)(8),
along with Table Sec.  110.155(l)(7) displaying the mooring anchor,
chain, and pendant requirements. The commercial mooring buoy permits
are now issued by the United States Army Corps of Engineers (USACE)
under the authority of 33 CFR 322 and 33 CFR 330. The co-location of
many commercial Anchorage Grounds and recreational special anchorage
areas in many locations has caused confusion with many mariners
regarding the issuance of these permits. As special anchorage areas are
located along the shoreline they fall within the jurisdiction of the
States of New Jersey and New York. Both New Jersey and New York have
State Coastal Zone Management or State Navigation regulations with
jurisdiction over the placement and permitting of recreational mooring
buoys. Removing these mooring buoy permit regulations would reduce
confusion among

professional and recreational mariners, and remove Federal regulations
that conflict with USACE regulations as well as New Jersey and New York
State laws and regulations.
    In developing this proposed rule, the Coast Guard has consulted
with the Army Corps of Engineers, New York District, located at 26
Federal Plaza, New York, NY 10278. For permitting information, mariners
should contact the NYC Parks Brooklyn Permit Office at<PHONE_NUMBER>.
For guest moorings and access to/from the eastern special anchorage
areas mariners may contact the following boating clubs: Miramar Yacht
Club<PHONE_NUMBER>; Port Sheepshead<PHONE_NUMBER>; or Sheepshead
Yacht Club<PHONE_NUMBER>.

Regulatory Analyses

    We developed this proposed 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 proposed 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 on fishing, or
recreational boats anchoring because this rule would not affect normal
surface navigation. Although this regulation may have some impact on
the public, the potential impact will be minimized for the following
reasons: Normal surface navigation will not be affected as the special
anchorage areas on the Hudson River and Sandy Hook Bay have
historically been used as mooring fields by NYC Parks and the town of
Atlantic Highlands, NJ.
    The regulation requiring all vessels anchoring in Sheepshead Bay,
NY to remain entirely within the northern and southern special
anchorage areas at all times has the potential to reduce the number of
vessels that are able to anchor within the special anchorage areas.
However, this is necessary to maintain an open area for larger charter
fishing vessels and event vessels transiting to and from NYC Parks
maintained fishing piers to the west.
    Disestablishing the western special anchorage area in Sheepshead
Bay, NY would reduce the area available for mooring recreational
vessels; however, NYC Parks requested this action in order to reduce
the illegal mooring of vessels and dinghies to NYC property while the
vessel owners/operators are ashore. These vessels would still be able
to anchor on transient vessel moorings in the northern and southern
special anchorage areas in Sheepshead Bay, NY.
    We expect minimal additional cost impacts on the tug and barge
operators because this rule would disestablish USCG permitting
regulations that are currently under the jurisdiction of the District
Engineer, U.S. Army Corps of Engineers.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
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 recreational and small fishing vessels intending to anchor
in the Hudson River, Sandy Hook Bay, NJ, and Sheepshead Bay, NY. The
proposed rule would not have a significant economic impact on a
substantial number of small entities for the same reasons outlined
above in the ``Executive Order 12866 and Executive Order 13563''
section.
    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), we offer to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. 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 proposed rule or any policy or action of the Coast
Guard.

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

    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 proposed 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 proposed rule would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.

Taking of Private Property

    This proposed rule would 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 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 would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would 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 proposed 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 proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 made a preliminary determination that this action is one of a
category of actions which do not individually or cumulatively have a
significant effect on the human environment. We believe the proposed
rule would be categorically excluded, under figure 2-1, paragraph
(34)(f) of the Instruction because it involves the establishment, and
disestablishment, of special anchorage areas and anchorage ground
regulations. We seek any comments or information that may lead to the
discovery of a significant environmental impact from this proposed
rule. A preliminary environmental analysis checklist is 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 proposes
to amend 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(g); Department of Homeland Security Delegation No.
0170.1.

    2. Revise Sec.  110.60 to read as follows:

Sec.  110.60  Captain of the Port, New York.

* * * * *
    (c) * * *
    (12) 79th Street Boat Basin South. All waters of the Hudson River
enclosed by a line beginning at the northwest corner of the 70th Street
pier at approximate position 40[deg]46'47.10'' N, 073[deg]59'29.13'' W;
thence to 40[deg]47'02.60'' N, 073[deg]59'17.88'' W; thence to
40[deg]46'59.73'' N, 073[deg]59'13.01'' W; thence along the shoreline
and pier to the point of beginning.
    (13) 79th Street Boat Basin North. All waters of the Hudson River
enclosed by a line beginning on the shoreline near West 110th Street at
approximate position 40[deg]48'21.06'' N, 073[deg]58'15.72'' W; thence
to 40[deg]48'21.06'' N, 073[deg]58'24.00'' W; thence to
40[deg]47'14.70'' N, 073[deg]59'09.00'' W; thence to 40[deg]47'11.84''
N, 073[deg]59'08.90'' W; thence along the breakwater and shoreline to
the point of beginning.
    (i) The anchoring of vessels and use of the moorings in anchorage
areas described in paragraphs (c)(12) and (c)(13) of this section will
be under the supervision, and at the discretion, of the local Harbor
Master appointed by the City of New York. Mariners may contact the boat
basin on VHF CH 9 or at<PHONE_NUMBER> for mooring and anchoring
availability. All moorings or anchors shall be placed well within the
anchorage areas so that no portion of the hull or rigging will at any
time extend outside of the anchorage.
    (ii) [Reserved.]
    (d) * * *
    (6) [Reserved.]
* * * * *
    (8) * * *
    (i) The anchoring of vessels and use of the moorings in anchorage
areas described in paragraphs (d)(7) and (d)(8) of this section will be
under the supervision, and at the discretion, of the local Harbor
Master appointed by the City of New York. All moorings or anchors shall
be placed well within the anchorage areas so that no portion of the
hull or rigging will at any time extend outside of the anchorage. For
permitting information mariners should contact the NYC Parks Brooklyn
Permit Office at<PHONE_NUMBER>. For guest moorings and access to and
from the anchorage areas described in paragraphs (d)(7) and (d)(8)
mariners may contact the following boating clubs: Miramar Yacht Club
(718) 769-3548; Port Sheepshead<PHONE_NUMBER>; or Sheepshead Yacht
Club<PHONE_NUMBER>.
    (ii) [Reserved].
* * * * *
    (11) Atlantic Highlands North. All of the waters of Sandy Hook Bay
enclosed by a line beginning on the breakwater at approximate position
40[deg]25'08.56'' N, 074[deg]01'19.66'' W; thence to 40[deg]25'01.59''
N, 074[deg]01'22.70'' W; thence to 40[deg]25'06.97'' N,
074[deg]01'59.80'' W; thence to 40[deg]25'11.93'' N, 074[deg]02'01.54''
W thence along the breakwater to the point of origin.
    (12) Atlantic Highlands South. All of the waters of Sandy Hook Bay
enclosed by a line beginning on the shoreline at approximate position
40[deg]24'53.97'' N, 074[deg]01'32.49'' W; thence to 40[deg]24'59.86''
N, 074[deg]01'31.07'' W; thence to 40[deg]25'02.20'' N,
074[deg]01'48.60'' W; thence to 40[deg]24'57.42'' N, 074[deg]01'50.53''
W; thence along the shoreline to the point of origin.
    (i) Mariners using the anchorage areas described in paragraphs
(d)(11) and (d)(12) must contact the local harbormaster, to ensure
compliance with any additional applicable state and local laws.

    (ii) [Reserved]
    (e) Datum. All positions are NAD 1983.
    3. Revise Sec.  110.155 to read as follows:

Sec.  110.155  Port of New York.

* * * * *
    (l) * * *
    (8) Operations near commercial mooring buoys permitted by the
District Engineer, U.S. Army Corps of Engineers.
    (i) No vessel shall continuously occupy a mooring when a vessel in
regular traffic requires the berth or when navigation would be menaced
or inconvenienced thereby.
    (ii) No vessel shall moor or anchor in any anchorage in such a
manner as to interfere with the use of a duly authorized mooring buoy.
Nor shall any vessel moored to a buoy authorized by the District
Engineer, U.S. Army Corps of Engineers be moored such that any portion
of that vessel comes within 50 feet of a marked or dredged channel.
    (iii) No vessel shall be operated within the limits of an anchorage
at speed exceeding 6 knots when in the vicinity of a moored vessel.
    (iv) In an emergency the Captain of the Port may shift the position
of any unattended vessel moored in or near any anchorage.
* * * * *

    Dated: January 23, 2012.
D.A. Neptun,
Rear Admiral, U.S. Coast Guard Commander, First Coast Guard District.
[FR Doc. 2012-2550 Filed 2-3-12; 8:45 am]
BILLING CODE 9110-04-P


2. Pesticide Registration ( PR) Notices a. 83 3 Label Improvement Program  Storage and Disposal Statements b. 84 1 Clarification of Label Improvement Program c. 86 5 Standard Format for Data Submitted under FIFRA d. 87 1 Label Improvement Program for Pesticides Applied through Irrigation Systems ( Chemigation)

e. 87 6 Inert Ingredients in Pesticide Products Policy Statement f. 90 1 Inert Ingredients in Pesticide Products; Revised Policy Statement g. 95 2 Notifications, Non notifications, and Minor Formulation Amendments h. 98 1 Self Certification of Product Chemistry Data with Attachments. ( This document is in PDF format and requires the Acrobat reader.)

Other PR Notices can be found at http:// www. epa. gov/ opppmsd1/ PR_ Notices.

3. Pesticide Product Registration Application Forms ( These forms are in PDF format and will require the Acrobat reader.)

a. EPA Form No. 8570 1, Application for Pesticide Registration/ Amendment b. EPA Form No. 8570 4, Confidential Statement of Formula c. EPA Form No. 8570 27, Formulator's Exemption Statement d. EPA Form No. 8570 34, Certification with Respect to Citations of Data e. EPA Form No. 8570 35, Data Matrix 62 4. General Pesticide Information ( Some of these forms are in PDF format and will require the Acrobat reader.)

a. Registration Division Personnel Contact List b. Biopesticides and Pollution Prevention Division ( BPPD) Contacts c. Antimicrobials Division Organizational Structure/ Contact List d. 53 F. R. 5952, Pesticide Registration Procedures; Pesticide Data Requirements ( PDF format)

e. 40 CFR Part 156, Labeling Requirements for Pesticides and Devices ( PDF format)

f. 40 CFR Part 158, Data Requirements for Registration ( PDF format)

g. 50 F. R. 48833, Disclosure of Reviews of Pesticide Data ( November 27, 1985)

Before submitting your application for registration, you may wish to consult some additional sources of information. These include:

1. The Office of Pesticide Programs' Web Site.

2. The booklet " General Information on Applying for Registration of Pesticides in the United States", PB92 221811, available through the National Technical Information Service ( NTIS) at the following address:

National Technical Information Service ( NTIS) 5285 Port Royal Road Springfield, VA. 22161 The telephone number for NTIS is ( 703) 605 6000. Please note that EPA is currently in the process of updating this booklet to reflect the changes in the registration program resulting from the passage of the FQPA and the reorganization of the Office of Pesticide Programs. We anticipate that this publication will become available during the Fall of 1998. Their Web site is www. NTIS. gov.

3. The National Pesticide Information Retrieval System ( NPIRS) of Purdue University's Center for Environmental and Regulatory Information Systems. This service does charge a fee for subscriptions and custom searches. You can contact NPIRS by telephone at ( 765) 494 6614 or through their Web site.

4. The National Pesticide Telecommunications Network ( NPTN) can provide information on active ingredients, uses, toxicology, and chemistry of pesticides. You can contact NPTN by telephone at ( 800) 858 7378 or through their Web site: ace. orst. edu/ info/ nptn. 63 The Agency will return a notice of receipt of an application for registration or amended registration, experimental use permit, or amendment to a petition if the applicant or petitioner encloses with his submission a stamped, self addressed postcard. The postcard must contain the following entries to be completed by OPP:

Date of receipt EPA identifying number Product Manager assignment Other identifying information may be included by the applicant to link the acknowledgment of receipt to the specific application submitted. EPA will stamp the date of receipt and provide the EPA identifying File Symbol or petition number for the new submission. The identifying number should be used whenever you contact the Agency concerning an application for registration, experimental use permit, or tolerance petition. To assist us in ensuring that all data you have submitted for the chemical are properly coded and assigned to your company, please include a list of all synonyms, common and trade names, company experimental codes, and other names which identify the chemical ( including " blind" codes used when a sample was submitted for testing by commercial or academic facilities). Please provide a CAS number if one has been assigned. 64


[Federal Register: May 31, 2006 (Volume 71, Number 104)]
[Rules and Regulations]
[Page 30805-30809]
[DOCID:fr31my06-8]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[R06-OAR-2005-NM-0003; FRL-8175-6]

Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Albuquerque/Bernalillo County

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The EPA is approving two separate State Implementation Plan
(SIP) revisions submitted by the Governor of New Mexico. The first
submittal, dated September 7, 2004, adopts local Ambient Air Quality
Standards (AAQS) and incorporates by reference the Federal National Air
Quality Standards (NAAQS) for the Albuquerque/Bernalillo County, New
Mexico area. The second submittal,

dated July 28, 2005, revises the Variance Procedure for the
Albuquerque/Bernalillo County, New Mexico area. We are approving these
two separate revisions in accordance with the requirements of the Clean
Air Act (the Act), section 110.

DATES: This direct final rule is effective on July 31, 2006 without
further notice, unless EPA receives relevant adverse comment by June
30, 2006. If EPA receives such comment, EPA will publish a timely
withdrawal in the Federal Register informing the public that this rule
will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
OAR-2005-NM-0003, by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the

on-line instructions for submitting comments.
    U.S. EPA Region 6 ``Contact Us'' web site: http://epa.gov/region6/r6coment.htm
 Please click on ``6PD'' (Multimedia) and select ``Air''

before submitting comments.
    E-mail: Mr. Thomas Diggs at<EMAIL_ADDRESS>Please also cc
the person listed in the FOR FURTHER INFORMATION CONTACT section below.
    Fax: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L), at fax
number<PHONE_NUMBER>.
    Mail: Mr. Thomas Diggs, Chief, Air Planning Section (6PD-L),
Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas,
Texas 75202-2733.
    Hand or Courier Delivery: Mr. Thomas Diggs, Chief, Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733. Such deliveries are accepted only
between the hours of 8 a.m. and 4 p.m. weekdays except for legal
holidays. Special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R06-OAR-
2005-NM-0003. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at http://www.regulations.gov, including any personal information

provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov

or e-mail. The http://www.regulations.gov Web site is an ``anonymous access''

system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through
http://www.regulations.gov your e-mail address will be automatically captured

and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.
    Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Air Planning Section

(6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700,
Dallas, Texas 75202-2733. The file will be made available by
appointment for public inspection in the Region 6 FOIA Review Room
between the hours of 8:30 a.m. and 4:30 p.m. weekdays except for legal
holidays. Contact the person listed in the FOR FURTHER INFORMATION
CONTACT paragraph below to make an appointment. If possible, please
make the appointment at least two working days in advance of your
visit. There will be a 15 cent per page fee for making photocopies of
documents. On the day of the visit, please check in at the EPA Region 6
reception area at 1445 Ross Avenue, Suite 700, Dallas, Texas.
    The State submittal is also available for public inspection at the
State Air Agency listed below during official business hours by
appointment:
    The City of Albuquerque, Environmental Health Department, One Civic
Plaza, Albuquerque, NM 87102.

FOR FURTHER INFORMATION CONTACT: Mr. Alan Shar of the Air Planning
Section (6PD-L), Environmental Protection Agency, Region 6, 1445 Ross
Avenue, Suite 700, Dallas, Texas 75202-2733 at<PHONE_NUMBER>, or
<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Evaluation of New Mexico's Submittal
    A. 20.11.8 NMAC, Ambient Air Quality Standards
    B. 20.11.7 NMAC, Variance Procedure
III. Final Action
IV. Statutory and Executive Order Reviews

    Throughout this document ``we,'' ``us,'' and ``our'' refer to EPA.

I. Background

    A revision to the New Mexico SIP concerning Title 20, Chapter 11,
Part 8 of the New Mexico Administrative Code (20.11.8 NMAC) was
submitted to us by the Governor of New Mexico on September 7, 2004.
This SIP revision establishes and adopts local AAQS for the
Albuquerque/Bernalillo County, New Mexico area. These AAQS are similar
to the New Mexico AAQS adopted by the New Mexico Environment Department
(NMED). It also incorporates by reference the Federal NAAQS at 40 CFR
part 50, as amended through July 18, 1997.
    The EPA approved the NMED-adopted state AAQS and incorporated
Federal NAAQS in Title 20, Chapter 2, Air Quality, Part 3 Ambient Air
Quality Standards on 09/26/97 (62 FR 50518) at Sec.  52.1620(c)(66) and
became effective 11/25/1997 for the State of New Mexico excluding the
Albuquerque/Bernalillo County area. See our Technical Support Document
(TSD) prepared in conjunction with this SIP revision for more
information concerning our evaluation of this part.
    Initially, EPA approved the New Mexico Regulation 24 Variance
Procedure for the Albuquerque/Bernalillo County area on April 10, 1980.
See April 10, 1980 (45 FR 24460) at Sec.  52.1620(c)(11) to (c)(15).
The Albuquerque/Bernalillo Board adopted and replaced its Variance
Procedure rules on October 1, 2002 as Title 20, Chapter 11, Part 7
(20.11.7 NMAC) and adopted changes on August 1, 2004. A revision to the
New Mexico SIP 20.11.7 NMAC concerning Variance Procedure for the
Albuquerque/Bernalillo County area was submitted to us by the Governor
of New Mexico on July 28, 2005. This SIP revision makes the Variance
Procedure more stringent than the original SIP-approved rule. Among
other things, it precludes issuance of variances from enumerated
Federal emissions limitations and programs, and clarifies that approval
or granting of a variance does not mean automatic approval by the EPA,
for the Albuquerque/Bernalillo County area.

II. Evaluation of New Mexico's Submittal

A. 20.11.8 NMAC, Ambient Air Quality Standards

    A revision to the New Mexico SIP concerning 20.11.8 NMAC was
submitted to us by the Governor of New Mexico on September 7, 2004.
This SIP revision establishes and adopts local AAQS for the
Albuquerque/Bernalillo County. It also incorporates by reference the
federal NAAQS as amended through July 18, 1997. The current Federally-
approved SIP, for the Albuquerque/Bernalillo County area, does not
contain the local or National AAQS for this area. As stated in section
I of this document, the local standards we are approving today are
similar to those that EPA has already approved for the remaining parts
of the New Mexico State. See September 26, 1997 (62 FR 50518). The
local AAQS are for hydrogen sulfide, total reduced sulfur, a 24-hour
average for nitrogen dioxide, a 24-hour average, 7-day average, 30-day
average, and annual geometric mean for particulate matter, and
limitations more stringent than the Federal NAAQS for the 8-hour and 1-
hour average for carbon monoxide, and the 24-hour average and annual
arithmetic mean for sulfur dioxide. Approval of these local standards
will lead to improved air quality. We are approving the incorporation
of the Federal NAAQS because it will make the Albuquerque/Bernalillo
County SIP consistent with the latest Federally-promulgated NAAQS.
    This SIP revision will provide for consistency between the NMED-
adopted SIP and the Albuquerque/Bernalillo County SIP. Thus, by
approving the SIP revision, all sources within the County that are
emitting, or wish to emit, any of the locally regulated pollutants and
precursors are required to comply with the same AAQS as all sources
anywhere within the geographical boundaries of the State. This SIP
revision will enhance the County's air quality. This SIP revision will
add more stringent requirements to the current Federally-approved SIP
and ensure that the SIP contains the most up-to-date Federal NAAQS. For
these reasons, we are approving, as a part of the SIP, the local AAQS
for the Albuquerque/Bernalillo County, New Mexico area under sections
110 and 116, and approving the incorporation of the Federal NAAQS under
section 110 of the Act.

B. 20.11.7 NMAC, Variance Procedure

    A revision to the New Mexico SIP concerning 20.11.7 NMAC was
submitted to us by the Governor of New Mexico on July 28, 2005. This
SIP revision includes a rule that replaces and revises the previous
Variance Procedure rule and imposes additional restrictions on the
Variance Procedures for the Albuquerque/Bernalillo County area.
    As stated in section I of this document, EPA initially approved the
New Mexico Regulation 24 Variance Procedure for the Albuquerque/
Bernalillo County area on April 10, 1980 (45 FR 24460). The Variance
Procedure rule, adopted in 2002 and revised in 2004, adds more
extensive public participation requirements, including several forms of
public notification, newspaper publications, public comment periods,
and adds a requirement for an evidentiary hearing versus a public
comment hearing. The granting of a variance still cannot either result
in a condition injurious to health or safety, or cause or contribute to
an air contaminant level in excess of any primary NAAQS. The
petitioner, however, now has the burden of proof in the evidentiary
hearing to show the need for a variance and now must prove by a
preponderance of evidence the facts relied upon to justify the
requested relief. Another significant improvement is that there no
longer is an automatic stay of enforcement pending the Board's
decision. Sections <IP_ADDRESS> (Scope) and <IP_ADDRESS> (Objective) add the
requirement to this SIP revision that variance from a limitation,
order, or permit condition does not apply to enumerated Federally
promulgated emissions standards and programs; e.g., the requirements to
obtain a minor preconstruction permit, a nonattainment preconstruction
permit, a Prevention of Significant Deterioration preconstruction
permit, or an operating permit and the requirements to meet the Federal
acid rain program, the Federal New Source Performance Standards, and
the Federal National Emission Standards for Hazardous Air Pollutants.
Furthermore, section <IP_ADDRESS> (Scope) specifies that approval or
granting of a variance to a source does not mean automatic approval by
EPA. Our TSD prepared in conjunction with this SIP revision contains
detailed information concerning our evaluation of this part. This SIP
revision greatly improves the current Federally-approved SIP rule, adds
many more safeguards to protect the existing air quality, e.g., no
automatic stay of enforcement, no variance from Federal programs, more
stringent public participation, and evidentiary hearings. We find that
approving 20.11.7 NMAC into the SIP meets section 110(l) of the Act.
For this reason, we are approving, as a part of the SIP, the Variance
Procedure 20.11.7 NMAC, as adopted in 2002 and revised in 2004, for the
Albuquerque/Bernalillo County, New Mexico area.

III. Final Action

    The EPA is approving the revisions to the New Mexico's Albuquerque/
Bernalillo County SIP because the revisions are consistent with the Act
and EPA regulatory requirements. The EPA is publishing this rule
without prior proposal because the EPA views this as a non-
controversial submittal and anticipates no adverse comments. However,
in the proposed rules section of this Federal Register publication, EPA
is publishing a separate document that will serve as the proposal to
approve the SIP revision should adverse comments be filed. This rule
will be effective July 31, 2006 without further notice, unless EPA
receives relevant adverse comment by June 30, 2006.
    If the EPA receives such comments, then EPA will publish a document
withdrawing the final rule and informing the public that the rule will
not take effect. All public comments received will then be addressed in
a subsequent final rule based on the proposed rule. The EPA will not
institute a second comment period. Parties interested in commenting
should do so at this time. If no such comments are received, the public
is advised that this rule will be effective on July 31, 2006, and no
further action will be taken on the proposed rule.

IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. For this
reason, this action is also not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action
merely approves state law as meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small

governments, as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4).
    This rule also does not have tribal implications because it will
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, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132 (64
FR 43255, August 10, 1999). This action merely approves a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act. This rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it is not economically
significant.
    In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not
impose an information collection burden under the provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this rule and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 31, 2006. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements.

    Dated: May 19, 2006.
Richard E. Greene,
Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart GG--New Mexico

0
2. Section 52.1620, paragraph (c), the second table entitled ``EPA
Approved Albuquerque/Bernalillo County, NM Regulations,'' is amended by
revising the entry for Part 7 and adding an entry for Part 8 to read as
follows:

Sec.  52.1620  Identification of plan.

* * * * *
    (c) * * *

                           EPA-Approved Albuquerque/Bernalillo County, NM Regulations
----------------------------------------------------------------------------------------------------------------
                                                               State
                                                             approval/       EPA  approval
         State citation               Title/subject          effective           date             Explanation
                                                               date
----------------------------------------------------------------------------------------------------------------
                         Albuquerque/Bernalillo County, Air Quality Control Regulations
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
New Mexico Administrative Code (NMAC) Title 20--Environment Protection, Chapter 11-Albuquerque/Bernalillo County
                                            Air Quality Control Board
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
Part 7 (20.11.7 NMAC)..........  Variance Procedure.....        09/07/04  05/31/06 [Insert
                                                                           FR page where
                                                                           document begins].
Part 8 (20.11.8 NMAC)..........  Ambient Air Quality            09/07/04  05/31/06 [Insert
                                  Standards.                               FR page where
                                                                           document begins].
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 06-4921 Filed 5-30-06; 8:45 am]

BILLING CODE 6560-50-P