Coast Guard, DHS.
Temporary interim rule with request for comments.
The Coast Guard is revising the current regulated navigation area (RNA) for the navigable waters of the Hudson River surrounding the Tappan Zee Bridge. First, the Coast Guard is establishing a new safety zone surrounding commercial mooring buoys installed for the ongoing Tappan Zee Bridge replacement project. The safety zone will prohibit all vessel traffic that could pose an imminent hazard to persons and vessels that will be transiting to and from the bridge site and maneuvering in close quarters between other construction vessels and large mooring buoys. Second, the Coast Guard is expanding the size of the current RNA and designating two areas within the RNA, the Eastern RNA and the Western RNA, based upon their respective locations in relation to the new safety zone. This rule is necessary to provide for the safety of life in the RNA and safety zone during the construction of the New NY Bridge and demolition of the existing Tappan Zee Bridge.
This rule is effective without actual notice from July 25, 2014 until December 31, 2018. For the purposes of enforcement, actual notice will be used from the date the rule was signed, July 3, 2014 until July 25, 2014.
Comments and related material will be accepted and reviewed by the Coast Guard through September 23, 2014.
Documents mentioned in this preamble are part of Docket Number USCG-2013-0705. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Open Docket Folder” on the line associated with this rulemaking. 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., Start Printed Page 43251Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
You may submit comments, identified by docket number, using any one of the following methods:
(1) Federal eRulemaking Portal:
(2) Fax: (202) 493-2251.
(3) Mail or Delivery: 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. Deliveries accepted between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. The telephone number is202-366-9329.
See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.
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FOR FURTHER INFORMATION CONTACT:
If you have questions on this rule, call or email Chief Craig Lapiejko, Waterways Management at Coast Guard First District, telephone 617-223-8351, email email@example.com or, Mr. Jeff Yunker, Coast Guard Sector New York Waterways Management Division, U.S. Coast Guard; telephone 718-354-4195, email firstname.lastname@example.org. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.
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Table of Acronyms
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
NYSTA New York State Thruway Authority
RNA Regulated Navigation Area
TIR Temporary Interim Rule
A. 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.
1. Submitting Comments
If you submit a comment, please include the docket number for this rulemaking, 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 at 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, 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, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 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.
2. 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, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. 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.
3. 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).
4. Public Meeting
We currently do not plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.
B. Regulatory History and Information
On September 26, 2013, the Coast Guard published a temporary interim rule (TIR) establishing a regulated navigation area (RNA) at 33 CFR 165.T01-0705 for the Tappan Zee Bridge replacement project in that waterway (78 FR 59231). We received no comments on the September 26, 2013 TIR. No public meeting was requested, and none was held. Today's TIR revises the September 26, 2013 RNA on the Hudson River due to changed circumstances in the construction project discussed below.
The Coast Guard is issuing this TIR without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable and contrary to the public interest. Construction on the Tappan Zee Bridge replacement project began on October 1, 2013. The construction project has grown to include the installation of 16 commercial mooring buoys and an increase in the number of construction vessels to 100 or more vessels. These changes present new safety hazards and risks. It would be impracticable to delay promulgating this rule, as the RNA and safety zone are necessary to protect the safety of both the construction crew and the waterway users operating in the vicinity of the bridge construction zone. A delay or cancellation of the currently ongoing bridge rehabilitation project in order to accommodate a full notice and comment period would delay necessary operations, result in increased costs, and delay the date when the bridge is expected to reopen for normal operations. For these reasons, the Coast Guard believes it is impracticable and Start Printed Page 43252contrary to the public interest to delay this regulation. At any time, the Coast Guard may publish an amended rule if necessary to address public concerns.
For the same reasons mentioned above, 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.
C. Basis and Purpose
Under the Ports and Waterways Safety Act, 33 U.S.C. 1221 et. seq., and Department of Homeland Security Delegation No. 0170.1, the Coast Guard has the authority to establish RNAs and safety zones.
This rule is prompted by the navigation safety situation created by the construction of the New NY Bridge to replace the existing Tappan Zee Bridge. Construction on the project began on October 1, 2013, and is expected to run through December 31, 2018.
The Coast Guard has discussed this project with the New York State Thruway Authority (NYSTA) and Tappan Zee Constructors, LLC, to determine whether the project can be completed without channel closures or waterway restrictions. While the majority of construction activities during the span of this project will not require waterway closures, there are certain tasks that can only be completed in the channel or surrounding installed commercial mooring buoys and will require closing the waterway. The construction of the bridge will be extremely complex and presents many safety hazards including overhead crane operations, overhead cutting operations, potential falling debris, construction vessels maneuvering and transiting between the bridge site and commercial mooring buoys installed upstream and downstream from the construction site, and barges positioned in the channel with a restricted ability to maneuver. In addition to regular construction activities, at present, NYSTA and Tappan Zee Constructors, LLC expect to request waterway closures of the Federal Channel between March 2015 and October 2016. The channel closures will be necessary during heavy lift operations conducted over the channel and are expected to be conducted during daylight hours. These closures will be closely coordinated with mariners in advance so they can alter their transit schedules. Mariners that may safely navigate outside the Federal channel would still be able to transit through the RNAs, during these heavy lift operations.
D. Discussion of the Interim Rule
The Coast Guard is revising the existing Regulated Navigation Area surrounding the Tappan Zee Bridge construction project to expand the size of the RNA to all waters of the Hudson River within 500 yards of the existing Tappan Zee Bridge. (The existing RNA includes all waters of the Hudson River within 200 yards south, and 300 yards north, of the existing Tappan Zee Bridge.) The expansion is necessary due to installation of 16 commercial mooring buoys, and the increase in the number of construction vessels operating within the RNA and safety zone to 100 or more vessels. Additionally, the RNA will be divided into the Western RNA and Eastern RNA, based upon their respective locations in relation to the safety zone. This is intended to reduce public confusion that may be created with establishing the NYSTA requested safety zone and Eastern and Western RNA areas in the same area of the Hudson River. As requested by the NYSTA, the RNA and safety zone would have overlapped and would have established different operating restrictions on vessels not involved with the project. This would have likely led to confusion among mariners when determining which regulations apply to them if they were within the area where the RNA and safety zone overlapped.
Additionally, the Coast Guard is establishing a new safety zone on the navigable waters of the Hudson River on the western side of the Hudson River, north and south of the Tappan Zee Bridge, NY. Entry into, anchoring, or movement within this safety zone is prohibited by all vessels not working on the Tappan Zee Bridge construction project. The safety zone surrounds 16 mooring buoys that are being installed for this project. These moorings will be used as a staging site for barges holding material used to build the New NY Bridge and demolish the existing Tappan Zee Bridge. During peak operations, 100 or more vessels may be within the RNAs, safety zone, or transiting to, or from, the RNAs and safety zone.
The Coast Guard is making these revisions to maintain safe navigation in the project area, and to prevent accidental or intentional damage to persons or property on the work site. The ongoing operations, increase in the number of construction vessels on site, and installation of the 16 mooring buoys within the RNA and safety zone, are by their nature, hazardous and pose risks both to recreational and commercial traffic as well as to the construction crew. In order to mitigate the inherent risks involved with the removal of a bridge, and installation of the New NY Bridge, it is necessary to control vessel movement through the area. The purpose of this TIR is to ensure the safety of waterway users, the public, and construction workers for the duration of the New NY Bridge construction and Tappan Zee Bridge demolition.
Heavy-lift operations are sensitive to water movement, and wake from passing vessels could pose significant risk of injury or death to construction workers. In order to minimize such unexpected or uncontrolled movement of water, any vessel transiting through the Western RNA must make a direct and expeditious passage. No vessel may stop, moor, anchor or loiter within the RNA at any time unless they are working on the bridge construction operations.
Similarly, any vessel transiting through the Eastern RNA must make a direct and expeditious passage. No vessel may stop, moor, anchor or loiter within the RNA at any time unless they are working on the bridge construction operations or they are anchoring within the special anchorage area codified in 33 CFR 110.60(c)(8) located on the eastern shoreline at Tarrytown, NY and within the boundaries of the Eastern RNA.
If the project is completed before December 31, 2018, the COTP will suspend enforcement of the Eastern or Western RNA and safety zone. The COTP will notify the affected segments of the public of any suspension of enforcement by appropriate means. Such means of notification could include, but would not be limited to, Broadcast Notice to Mariners and Local Notice to Mariners.
The COTP maintains a telephone line that is staffed 24 hours a day, seven days a week. The public can obtain information concerning enforcement of the regulated navigation area and safety zone by contacting the Coast Guard Sector New York Command Center at (718) 354-4353.
E. Regulatory Analyses
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
1. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented Start Printed Page 43253by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
The Coast Guard determined that this rulemaking would not be a significant regulatory action for the following reasons: Vessel traffic would only be restricted from the Eastern RNA for limited durations. The Eastern RNA covers only a small portion of the navigable waterway which includes the Federal navigation channel. Furthermore, while the Federal navigation channel is closed, vessels that can safely navigate outside the Federal navigation channel would still be able to transit through the Western RNA or the portion of the Eastern RNA which does not encompass the Federal navigable channel.
Advance public notifications will also be made to local mariners through appropriate means, which may include but are not limited to, Local Notice to Mariners and Broadcast Notice to Mariners.
2. Impact on Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard received no comments from the Small Business Administration on the September 26, 2013 TIR. 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 would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor or moor within the Eastern or Western RNA or safety zone.
The Eastern and Western RNA and safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The Eastern and Western RNAs and safety zone will be of limited size and any closures of the Federal navigation channel will be of short duration. Mariners that can safely navigate outside the Federal navigation channel would still be able to transit through the Western RNA and that portion of the Eastern RNA which does not encompass the Federal Restricted channel. Before the effective period of a waterway closure, advanced public notifications may be made to local mariners through appropriate means, which could include, but would not be limited to, Local Notice to Mariners, Broadcast Notice to Mariners, and the Boater Safety Information section of the project Web site at http://www.newnybridge.com. Individuals may also subscribe for email updates for the project in the “contact us” section of the project Web site.
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.
3. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. 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 the person listed in the FOR FURTHER INFORMATION CONTACT, above.
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, call1-888-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.
4. Collection of Information
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
6. Protest Activities
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
7. 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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.
8. 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.
9. 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.
10. Protection of Children From Environmental Health Risks
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.
11. 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.Start Printed Page 43254
12. Energy Effects
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
13. Technical Standards
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
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 determined that 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 involves restricting vessel movement within a regulated navigation area and safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.
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- Marine safety
- Navigation (water)
- Reporting and recordkeeping requirements
- Security measures
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
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1. The authority citation for part 165 continues to read as follows: End Amendment Part
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2. Revise § 165.T01-0174 to read as follows:End Amendment Part
Regulated Navigation Areas and Safety Zone Tappan Zee Bridge Construction Project, Hudson River; South Nyack and Tarrytown, NY.
(a) Regulated Navigation Area Boundaries. The following are regulated navigation areas:
(1) Western RNA: all waters bound by the following approximate positions: 41°04′39.16″ N, 073°55′00.68″ W on the western shoreline; thence to 41°04′28.34″ N, 073°54′47.18″ W; thence to 41°04′11.28″ N, 073°54′48.00″ W; thence to 41°03′57.26″ N, 073°54′40.73″ W; thence to 41°03′57.36″ N, 073°54′47.38″ W; thence to 41°03′58.66″ N, 073°54′56.14″ W; thence to 41°04′03.00″ N, 073°55′07.60″ W; thence to a point on the western shoreline at 41°04′06.69″ N, 073°55′14.10″ W; thence northerly along the shoreline to the point of origin (NAD 83).
(2) Eastern RNA: all waters bound by the following approximate positions: 41°04′21.96″ N, 073°52′03.25″ W on the eastern shoreline; thence to 41°04′26.27″ N, 073°52′19.82″ W; thence to 41°04′26.53″ N, 073°53′20.07″ W; thence to 41°03′56.92″ N, 073°53′18.84″ W; thence to 41°03′56.69″ N, 073°52′24.75″ W; thence to a point on the eastern shoreline at 41°03′46.91″ N, 073°52′05.89″ W; thence northerly along the shoreline to the point of origin (NAD 83).
(b) Safety Zone Boundaries. The following is a Safety Zone: all waters bound by the following approximate positions: 41°04′59.70″ N, 073°54′45.54″ W; thence to 41°05′00.18″ N, 073°53′21.48″ W; thence to 41°03′09.24″ N, 073°53′16.86″ W; thence to 41°03′07.08″ N, 073°54′14.70″ W; thence to 41°04′11.28″ N, 073°54′48.00″ W; thence to the point of origin (NAD 83).
(c) Regulations. (1) The general regulations contained in 33 CFR 165.10, 165.11, and 165.13, 165.20 and 165.23 apply.
(2) Any vessel transiting through the Western RNA must make a direct and expeditious passage. No vessel may stop, moor, anchor or loiter within the RNA at any time unless they are working on the bridge construction operations.
(3) Any vessel transiting through the Eastern RNA must make a direct and expeditious passage. No vessel may stop, moor, anchor or loiter within the RNA at any time unless they are working on the bridge construction operations or they are transiting to, or from, the special anchorage area codified in 33 CFR 110.60(c)(8) located on the eastern shoreline at Tarrytown, NY and within the boundaries of the RNA.
(4) Entry and movement within the Eastern RNA or Western RNA is subject to a “Slow-No Wake” speed limit. All vessels may not produce a wake and may not attain speeds greater than five knots unless a higher minimum speed is necessary to maintain steerageway. All vessels must proceed through the Eastern RNA and Western RNA with caution and operate in such a manner as to produce no wake.
(5) Entry into, anchoring, loitering, or movement within the Safety Zone is prohibited unless the vessel is working on the bridge construction operations or authorized by the Captain of the Port New York (COTP) or his designated representative.
(6) All persons and vessels must comply with all orders and directions from the COTP or the COTP's designated representative. The “designated representative” of the COTP is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on the COTP's behalf. The designated representative may be on a Coast Guard vessel or New York State Police, Westchester County Police, Rockland County Police, or other designated craft; or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. Members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.
(7) Upon being hailed by a Coast Guard vessel by siren, radio, flashing light or other means, the operator of the vessel must proceed as directed.
(8) For the purpose of this regulation, the Federal navigation channel, located in the Eastern RNA is marked by the red and green navigation lights on the existing Tappan Zee Bridge, and the New NY Bridge. As the project progresses, the Federal navigation channel will be intermittently closed, or partially restricted, to all vessel transits. While the Federal navigation channel is closed, vessels that can safely navigate outside the Federal navigation channel would still be able to transit through the Eastern RNA. These closures or partial restrictions are tentatively scheduled to take place between March 2015 and October 2016. The COTP will cause a notice of the channel closure or restrictions by appropriate means to the affected segments of the public. Such means of notification may include, but are not limited to, Broadcast Notice to Mariners and Local Notice to Mariners.
(9) Notwithstanding anything contained in this section, the Rules of the Road (33 CFR part 84—Subchapter E, inland navigational rules) are still in Start Printed Page 43255effect and must be strictly adhered to at all times.
(d) Enforcement periods. This regulation will be enforced 24 hours a day from 5:00 a.m. on July 3, 2014 until 11:59 p.m. on December 31, 2018.
(1) Notice of suspension of enforcement: If enforcement is suspended, the COTP will cause a notice of the suspension of enforcement by appropriate means to the affected segments of the public. Such means of notification may include, but are not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. Such notification will include the date and time that enforcement will be suspended as well as the date and time that enforcement will resume.
(2) Violations of this regulation may be reported to the COTP at 718-354-4353 or on VHF-Channel 16.
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Dated: July 3, 2014.
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2014-17600 Filed 7-24-14; 8:45 am]
BILLING CODE 9110-04-P