Regulated Navigation Area and Safety Zone: Tappan Zee Bridge Construction Project, Hudson River; South Nyack and Tarrytown, NY |
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Andrew J. Tiongson
Department of Homeland Security
21 December 2018
[Federal Register Volume 83, Number 245 (Friday, December 21, 2018)]
[Rules and Regulations]
[Pages 65521-65523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27669]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2013-0705]
RIN 1625-AA00
Regulated Navigation Area and Safety Zone: Tappan Zee Bridge
Construction Project, Hudson River; South Nyack and Tarrytown, NY
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule and request for comments.
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SUMMARY: The Coast Guard is extending the effective period of the
temporary regulated navigation areas and safety zone for the navigable
waters of the Hudson River, NY, surrounding the Tappan Zee Bridge. This
rule will extend the effective period of the existing temporary interim
rule for an additional year, now ending on December 31, 2019. This rule
will continue to prohibit all persons and vessel traffic from the
safety zone and enforce speed and wake restrictions for the Eastern and
Western regulated navigation areas as cited in this rule unless
exceptions are authorized by the First District Commander or a
designated representative. These regulated navigation areas and safety
zone continue to be necessary to protect personnel, vessels, and the
marine environment from potential hazards during the removal of the
existing Tappan Zee Bridge and construction of a new bridge.
DATES: The effective period of Sec. 165.T01-0174 is extended to
December 31, 2019. The amendments in this rule are effective from
December 31, 2018, through December 31, 2019.
Comments and related material must be received by the Coast Guard
on or before April 1, 2019.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2013-0705 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule. You may submit
comments identified by docket number USCG-2013-0705 using the Federal
eRulemaking Portal at http://www.regulations.gov. See the ``Public
Participation and Request for Comments'' portion for further
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Craig Lapiejko, Waterways Management at Coast Guard
First District, telephone 617-223-8351, email craig.lapiejko@uscg.mil
or, Mr. Jeff Yunker, Coast Guard Sector New York Waterways Management
Division, U.S. Coast Guard; telephone 718-354-4195, email
jeff.m.yunker@uscg.mil.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NYSTA New York State Thruway Authority
RNA Regulated Navigation Area
NPRM Notice of proposed rulemaking
TIR Temporary Interim Rule
Sec. Section
U.S.C. United States Code
II. Background Information and Regulatory History
On September 26, 2013, the Coast Guard published a temporary
interim rule (TIR) establishing a regulated navigation area (RNA) on
the navigable waters of the Hudson River, NY, for the Tappan Zee Bridge
replacement project (78 FR 59231). We received no comments on the
September 26, 2013, TIR. No public meeting was requested, and none was
held. Construction on the Tappan Zee Bridge replacement project began
on October 1, 2013.
On July 25, 2014, the Coast Guard published a change to the
original TIR which established a new safety zone and expanded the RNA
to create both an Eastern and Western RNA for the Tappan Zee Bridge
replacement project on navigable waters of the Hudson River, NY (79 FR
43250). We received two comments on the July 25, 2014, TIR. The first
comment referenced an unrelated rulemaking effort to establish
anchorage locations along the Hudson River. The second comment merely
provided the environmental checklist for the TIR. No public meeting was
requested, and none was held.
Today's TIR extends the effective period of the rule for one year
until December 31, 2019, due to delays of the Tappan Zee Bridge
replacement project.
On August 23, 2018, the NYSTA requested the RNAs and safety zone be
extended until December 31, 2019, to complete all remaining contract
operations in and over the Hudson River, including, but not limited to
steel erection, concrete bridge deck placements, installation of
navigation lighting, and removal of the original Tappan Zee Bridge.
The Coast Guard is issuing this temporary interim rule 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 NPRM with
respect to this rule because doing so would be impracticable and
contrary to the public interest. The notice allowing the construction
project to proceed and providing updated timelines for the project was
only recently finalized and provided to the Coast Guard, which did not
give the Coast Guard enough time to publish a NPRM, take public
comments, and issue a final rule before the existing regulation
expires. Timely action is needed to respond to the potential safety
hazards associated with removal of the original bridge and construction
of a new replacement bridge. It would be impracticable and contrary to
the public interest to publish a NPRM because we must extend the
effective period of the safety zone and RNAs as soon as possible to
protect the safety of the waterway users, construction crew, and other
personnel associated with the bridge project. A delay of the project to
accommodate a full notice and comment period would delay necessary
operations, result in increased costs, and delay the completion date of
the bridge project and subsequent reopening of the Hudson River for
normal operations.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for
[[Page 65522]]
making it effective less than 30 days after publication in the Federal
Register. For reasons stated in the preceding paragraph, delaying the
effective date of this rule would be impracticable and contrary to the
public interest because timely action is needed to respond to the
potential safety hazards associated with the project.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231.
The First District Commander has determined that potential hazards
exist associated with this bridge construction, and removal project
that has already commenced, and will continue through December 31,
2019, will be a safety concern for anyone within the work zone. The
construction and removal of the bridge continues to be extremely
complex and presents many safety hazards including overhead crane
operations, overhead cutting operations, potential falling debris, and
barges positioned in the Hudson River, and along the length of the
bridge. In order to mitigate the inherent risks involved with the
removal of a bridge, and installation of the new 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 bridge construction
and 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 and 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. This
rule is needed to protect personnel, vessels, and the marine
environment on the navigable waters of the Hudson River, NY, during the
bridge project.
IV. Discussion of the Rule
This rule extends the effective period of the temporary interim
rule for the navigable waters of the Hudson River, NY, surrounding the
Tappan Zee Bridge for one additional year until December 31, 2019.
There are no other changes to the regulatory text of this rule as cited
in 33 CFR Sec. 165.T01-0174. This rule will continue to prohibit all
persons and vessel traffic from the safety zone and enforce speed and
wake restrictions for the Eastern and Western RNAs unless exceptions
are authorized by the First District Commander or a designated
representative.
V. Regulatory Analyses
We developed this rule after considering numerous statutes and
Executive orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive orders and we discuss
First Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, it has not been reviewed by the Office of
Management and Budget (OMB), and pursuant to OMB guidance it is exempt
from the requirements of Executive order 13771.
This regulatory action determination is based on 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 on the Hudson River
is closed, vessels that can safely navigate outside the channel may
still be able to transit through the Western RNA or the portion of the
Eastern RNA which does not encompass the Federal Navigation channel,
depending on the project schedule and location of project vessels in
these areas. The Coast Guard does not expect to receive any additional
requests to close the entire Federal navigation channel in 2019, based
upon the current construction progress, except in case of an emergency.
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, Broadcast Notice to Mariners, and the Boater
Safety Information section of the project website at http://www.newnybridge.com.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. 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
would not have a significant economic impact on a substantial number of
small entities.
While some owners or operators of vessels intending to transit the
RNAs and safety zone may be small entities, for the reasons stated in
section V.A above, this rule will not have a significant impact on any
vessel owner or operator.
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
section.
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.
C. Collection of Information
This temporary interim rule will not call for a new collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).
D. Federalism and Indian Tribal Governments
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 have
determined that it is consistent with the fundamental federalism
principles and preemption requirements described in Executive Order
13132.
[[Page 65523]]
Also, this 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section.
E. 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 would not result
in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this rule under Department of Homeland Security
Directive 023-01, which guides the Coast Guard in complying with the
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and
have made a preliminary determination 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
extending the effective time for one year restricting vessel movement
within regulated navigation areas and safety zone on the navigable
waters of Hudson River in vicinity of the Tappan Zee Bridge
construction project. Normally such actions are categorically excluded
from further review under paragraph L60(a) of Appendix A, Table 1 of
DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of
Environmental Consideration for Categorically Excluded Actions is
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 temporary interim rule.
G. 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.
VI. Public Participation and Request for Comments
We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. 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.
We encourage you to submit comments through the Federal eRulemaking
Portal at http://www.regulations.gov. If your material cannot be
submitted using http://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
We accept anonymous comments. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, visit http://www.regulations.gov/privacyNotice.
Documents mentioned in this TIR as being available in the docket,
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard 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:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1,
6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
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2. Amend Sec. 165.T01-0174 by revising the introductory text of
paragraph (d) to read as follows:
Sec. 165.T01-0174 Regulated Navigation Areas and Safety Zone Tappan
Zee Bridge Construction Project, Hudson River; South Nyack and
Tarrytown, NY.
* * * * *
(d) Enforcement periods. This regulation will be enforced 24 hours
a day from 11:59 p.m. on December 31, 2018 until 11:59 p.m. on December
31, 2019.
* * * * *
Dated: December 18, 2018.
Andrew J. Tiongson,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2018-27669 Filed 12-20-18; 8:45 am]
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