Safety Zones; Tappan Zee Bridge Demolition, Hudson River; South Nyack and Tarrytown, NY |
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J.P. Tama
Department of Homeland Security
1 March 2019
[Federal Register Volume 84, Number 41 (Friday, March 1, 2019)]
[Rules and Regulations]
[Pages 6969-6972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03716]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2018-1059]
RIN 1625-AA00
Safety Zones; Tappan Zee Bridge Demolition, Hudson River; South
Nyack and Tarrytown, NY
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing two temporary safety zones for
navigable waters within approximately a 2,500 foot radius of the center
of the old Tappan Zee Bridge east cantilever span. The two safety zones
are needed to protect personnel, vessels, and the marine environment
from potential hazards created by dropping the east cantilever span by
explosive charges into the Hudson River. Entry of vessels or persons
into either of these two safety zones is prohibited unless specifically
authorized by the Captain of the Port New York or a designated
representative.
DATES: This rule is effective without actual notice from March 1, 2019
through April 31, 2019. For the purposes of enforcement, actual notice
will be used from January 12, 2019 through March 1, 2019.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2018-1059 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rule.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Jeff Yunker, Waterways Management Division, U.S.
Coast Guard Sector New York, 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 New York and New Jersey
DBO USCG First District Bridge Office
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
NYSTA New York State Thruway Authority
RNA Regulated Navigation Area
Sec. Section
TFR Temporary Final Rule
TIR Temporary Interim Rule
U.S.C. United States Code
II. Background Information and Regulatory History
On September 26, 2013, the Coast Guard published a TIR establishing
a 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 no
public meeting 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 no public meeting was held.
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. On
December 21, 2018, the Coast Guard published a change to the original
TIR extending the RNAs and safety zone effective date to December 31,
2019 (83 FR 65521).
On November 9, 2018, the Coast Guard received the contractor's
preliminary plan and procedures for explosives handling, and their east
cantilever span salvage plan. The contractor has since deployed heavy
lifting chains along the Hudson Riverbed beneath the east cantilever
span, east of the Federal navigation channel. These heavy chains will
be used to lift and remove the east cantilever span from the Hudson
Riverbed after it has been felled from the existing bridge structure by
explosive charges. The Hudson River will be closed to all vessels
within approximately a 2,500 foot radius of the center of the east
cantilever span, unless authorized by the COTP or his designated
representative during these operations. These two safety zones will
provide this 2,500 foot restricted area that is not currently within
the boundaries of the existing eastern RNA codified at 33 CFR 165.T01-
0174.
The Coast Guard is issuing this temporary 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 an NPRM with respect to this rule
because the plans for using explosive charges to drop the east
cantilever span into the Hudson River was only recently finalized and
provided to the Coast Guard, which did not give the Coast Guard enough
time to publish an NPRM, take public comments, and issue a final rule
before demolition commences. Timely action is needed to respond to the
potential safety hazards associated with this demolition project. It
would be impracticable and contrary to the public interest to publish
an NPRM because we must establish these two safety zones prior to
demolition on January 12, 2019, to protect the safety of the waterway
users, construction crew, and other personnel associated with the
bridge project. A delay of the demolition 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 making this rule effective less than 30 days after publication in
the Federal Register. Delaying the effective date of this rule would be
impracticable because immediate action is needed to respond to the
potential safety hazards associated with the use of explosives to drop
the east cantilever span of the old Tappan Zee Bridge to the Hudson
Riverbed and subsequent removal of the
[[Page 6970]]
east cantilever span from the Hudson River.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 33 U.S.C.
1231. The COTP has determined that potential hazards associated with
the use of explosives to drop the east cantilever span of the old
Tappan Zee Bridge to the Hudson Riverbed, tentatively scheduled no
earlier than Saturday, January 12, 2019, will be a safety concern for
anyone within a 2,500-foot radius of the center of the east cantilever
span of the old Tappan Zee Bridge. This rule is needed to protect
personnel, vessels, and the marine environment in the navigable waters
within the two safety zones during the dropping of the east cantilever
span of the old Tappan Zee Bridge.
IV. Discussion of the Rule
This rule establishes two safety zones, a North Safety Zone and a
South Safety Zone, from 7:00 a.m. on January 12, 2019 through 11:59
p.m. on April 31, 2019. This rule is tentatively scheduled to be
enforced from 7:00 a.m. until 10:00 a.m. on January 12, 2019. The two
safety zones cover all navigable waters of the Hudson River within
approximately a 2,500 foot radius of the center of the old Tappan Zee
Bridge east cantilever span in approximate position 41[deg]04'12.3'' N,
073[deg]52'40.1'' W (NAD 83). The two safety zones are immediately
adjacent, north and south, of the existing eastern RNA, and immediately
adjacent, east, of the existing safety zone, codified at 33 CFR
165.T01-0174.
The North Safety Zone includes all waters of the Hudson River north
of the old Tappan Zee Bridge, and east of the existing construction
safety zone, from surface to bottom, bound by the following approximate
positions: 41[deg]04'21.96'' N, 073[deg]52'03.25'' W, thence to
41[deg]04'26.27'' N, 073[deg]52'19.82'' W, thence to 41[deg]04'26.53''
N, 073[deg]53'20.07'' W, thence to 41[deg]04'37.50'' N,
073[deg]53'20.59'' W, thence to 41[deg]04'37.50'' N, 073[deg]52'21.65''
W, thence to the point of origin (NAD 83).
The South Safety Zone includes all waters of the Hudson River south
of the old Tappan Zee Bridge, and east of the existing construction
safety zone, from surface to bottom, bound by the following approximate
positions: 41[deg]03'46.91'' N, 073[deg]52'05.89'' W, thence to
41[deg]03'56.69'' N, 073[deg]52'24.75'' W, thence to 41[deg]03'56.92''
N, 073[deg]53'18.84'' W, thence to 41[deg]03'46.92'' N,
073[deg]53'18.42'' W, thence to the point of origin (NAD 83).
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The Coast Guard is publishing this rulemaking to be effective, and
enforceable, through April 31, 2019 in case the project is delayed due
to construction delays or unforeseen circumstances.
The duration of the two safety zones are intended to protect
personnel, vessels, and the marine environment in these navigable
waters during the use of explosives to drop the east cantilever span of
the old Tappan Zee Bridge to the Hudson Riverbed. No vessel or person
will be permitted to enter the two safety zones without obtaining
permission from the COTP or a designated representative.
The Coast Guard will notify the public and local mariners of these
two safety zones through the Local Notice to Mariners and/or Broadcast
Notice to Mariners via VHF-FM marine channel 16 in advance of any
scheduled enforcement period.
[[Page 6971]]
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, this rule 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: (1) The two safety zones only impact a small designated area
of the Hudson River, (2) the two safety zones will only be enforced
during the demolition and cleanup of the east cantilever span of the
old Tappan Zee Bridge to the Hudson Riverbed, (3) vessels not
constrained by their draft or length may still transit from the north,
to, and from, the marina located in Tarrytown, NY on the east shore of
the Hudson River, (4) the demolition operations are scheduled in the
Winter when recreational vessel traffic is less frequent.
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
will not have a significant economic impact on a substantial number of
small entities.
While some owners or operators of vessels intending to transit the
two safety zones may be small entities, for the reasons stated in
section V.A above, this rule will not have a significant economic
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 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.
Also, 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. If
you believe this rule has implications for federalism or Indian tribes,
please contact the person listed in the FOR FURTHER INFORMATION CONTACT
section above.
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 will 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 and Commandant Instruction M16475.1D, which guide the
Coast Guard in complying with the National Environmental Policy Act of
1969 (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
two safety zones during demolition and cleanup operations that will
prohibit entry within a 2,500 foot radius of the center of the old
Tappan Zee Bridge east cantilever span during the use of explosives to
drop the east cantilever span of the old Tappan Zee Bridge to the
Hudson Riverbed. It is 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 Record of Environmental Consideration supporting
this determination is available in the docket where indicated under
ADDRESSES.
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.
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:
[[Page 6972]]
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
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.
0
2. Add Sec. 165.T01-1059 to read as follows:
Sec. 165.T01-1059 Safety Zones, Tappan Zee Bridge Demolition, Hudson
River; South Nyack and Tarrytown, NY.
(a) North safety zone boundaries. The following is a safety zone:
All waters of the Hudson River north of the old Tappan Zee Bridge, and
east of the existing construction safety zone, from surface to bottom,
bound by the following approximate positions: 41[deg]04'21.96'' N,
073[deg]52'03.25'' W, thence to 41[deg]04'26.27'' N, 073[deg]52'19.82''
W, thence to 41[deg]04'26.53'' N, 073[deg]53'20.07'' W, thence to
41[deg]04'37.50'' N, 073[deg]53'20.59'' W, thence to 41[deg]04'37.50''
N, 073[deg]52'21.65'' W, thence to the point of origin (NAD 83).
(b) South safety zone boundaries. The following is a safety zone:
All waters of the Hudson River south of the old Tappan Zee Bridge, and
east of the existing construction safety zone, from surface to bottom,
bound by the following approximate positions: 41[deg]03'46.91'' N,
073[deg]52'05.89'' W, thence to 41[deg]03'56.69'' N, 073[deg]52'24.75''
W, thence to 41[deg]03'56.92'' N, 073[deg]53'18.84'' W, thence to
41[deg]03'46.92'' N, 073[deg]53'18.42'' W, thence to the point of
origin (NAD 83).
(c) Definitions. The following definitions apply to this section:
Designated representative means any Coast Guard commissioned,
warrant, petty officer, or designated Patrol Commander of the U.S.
Coast Guard who has been designated by the Captain of the Port, Sector
New York (COTP), to act on his or her behalf. The designated
representative may be on an official patrol vessel or may be on shore
and will communicate with vessels via VHF-FM radio or loudhailer. In
addition, members of the Coast Guard Auxiliary may be present to inform
vessel operators of this regulation.
Official patrol vessels means any Coast Guard, Coast Guard
Auxiliary, state, or local law enforcement vessels assigned or approved
by the COTP.
(d) Regulations. When these two safety zones are enforced, the
following regulations, along with those contained in Sec. 165.23
apply:
(1) During periods of enforcement no person or vessel may enter or
remain in either of the two safety zones described in paragraphs (a)
and (b) of this section unless authorized by the COTP or the COTP's
designated representative.
(2) Persons and vessels may request permission to enter the zone on
VHF-16.
(3) Any vessels permitted to enter these zones must comply with all
orders and directions from the COTP or the COTP's designated
representative.
(4) 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.
(5) Notwithstanding anything contained in this section, the Rules
of the Road in 33 CFR subchapter E, part 84, are still in effect and
must be strictly adhered to at all times.
(d) Enforcement periods. This regulation is enforceable 24 hours a
day from 7:00 a.m. on January 12, 2019 until 11:59 p.m. on April 31,
2019, but will only be enforced during the use of explosives to drop
the east cantilever span of the old Tappan Zee Bridge to the Hudson
Riverbed. The demolition operations that will require enforcement of
the two safety zone regulations are tentatively scheduled to take place
on January 12, 2019, from approximately 7:00 a.m. until 10:00 a.m.,
unless delayed. The COTP will provide notice of the channel closure 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/or Local Notice to Mariners.
(1) If enforcement is suspended, the COTP will provide a notice of
the suspension of enforcement by appropriate means. Such means of
notification may include, but are not limited to, Broadcast Notice to
Mariners and/or Local Notice to Mariners.
(2) Violations of this regulation may be reported to the COTP at
(718) 354-4353 or on VHF-Channel 16.
Dated: January 3, 2019.
J.P. Tama,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2019-03716 Filed 2-28-19; 8:45 am]
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