Regulated Navigation Area and Safety Zone: Tappan Zee Bridge Construction Project, Hudson River; South Nyack and Tarrytown, NY |
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A.J. Tiongson
Department of Homeland Security
3 January 2020
[Federal Register Volume 85, Number 2 (Friday, January 3, 2020)]
[Rules and Regulations]
[Pages 218-222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28115]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2019-0970]
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 final rule.
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SUMMARY: The Coast Guard is establishing two temporary regulated
navigation areas and a safety zone for the navigable waters of the
Hudson River, NY, surrounding the Tappan Zee Bridge from January 1,
2020 through July 1, 2020. This rule will prohibit all persons and
vessel traffic from the safety zone and enforce speed and wake
restrictions for the Eastern and Western regulated navigation areas
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: This rule is effective without actual notice from January 3,
2020 through July 1, 2020. For the purposes of enforcement, actual
notice will be used from January 1, 2020 through January 3, 2020.
Comments and related material must be received by the Coast Guard
during the effective period on or before April 1, 2020.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov, type USCG-
2019-0970 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-2019-0970 using the Federal
eRulemaking Portal at http://www.regulations.gov. See the ``Public
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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
TFR Temporary Final 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 final
rule (TFR) 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.
On December 21, 2018, the Coast Guard published (83 FR 65521) which
extended the effective period of the rule for one year until December
31, 2019, due to delays of the Tappan Zee Bridge replacement project.
On December 20, 2019, the NYSTA requested the RNAs and safety zone
be extended through June 2020, to complete all remaining contract
operations in and over the Hudson River.
The Coast Guard is issuing this temporary final 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 construction
operations 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.
Additionally, construction barges and mooring balls still remain in the
area. 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 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 46 U.S.C.
70034.
The First District Commander has determined that potential hazards
exist associated with this bridge construction project that has already
commenced, and will continue through July 1, 2020, 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 final work projects to complete
the new bridge, it is necessary to control vessel movement through the
area. The purpose of this TFR is to ensure the safety of waterway
users, the public, and construction workers for the duration of the
bridge construction project. 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 establishes a temporary final rule for the navigable
waters of the Hudson River, NY, surrounding the Tappan Zee Bridge until
July 1, 2020. There are no other changes to the regulatory text of this
rule as previously cited in 33 CFR Sec. 165.T01-0174. This rule will
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
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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 2020, 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 final 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 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, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), 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
extending the effective time for six months 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 Record of
Environmental Consideration supporting this determination 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 final 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
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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 TFR 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
0
1. The authority citation for part 165 continues to read as follows:
Authority: 46 U.S.C. 70034, 70051; 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.T01-0970 to read as follows:
Sec. 165.T01-0970 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[deg]04'39.16'' N, 073[deg]55'00.68'' W on the western
shoreline; thence to 41[deg]04'28.34'' N, 073[deg]54'47.18'' W; thence
to 41[deg]04'11.28'' N, 073[deg]54'48.00'' W; thence to
41[deg]03'57.26'' N, 073[deg]54'40.73'' W; thence to 41[deg]03'57.36''
N, 073[deg]54'47.38'' W; thence to 41[deg]03'58.66'' N,
073[deg]54'56.14'' W; thence to 41[deg]04'03.00'' N, 073[deg]55'07.60''
W; thence to a point on the western shoreline at 41[deg]04'06.69'' N,
073[deg]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[deg]04'21.96'' N, 073[deg]52'03.25'' W on the eastern
shoreline; 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]03'56.92'' N, 073[deg]53'18.84'' W; thence to 41[deg]03'56.69''
N, 073[deg]52'24.75'' W; thence to a point on the eastern shoreline at
41[deg]03'46.91'' N, 073[deg]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[deg]04'59.70''
N, 073[deg]54'45.54'' W; thence to 41[deg]05'00.18'' N,
073[deg]53'21.48'' W; thence to 41[deg]03'09.24'' N, 073[deg]53'16.86''
W; thence to 41[deg]03'07.08'' N, 073[deg]54'14.70'' W; thence to
41[deg]04'11.28'' N, 073[deg]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 effect and must be strictly adhered to at all times.
(d) Enforcement Periods. This regulation will be enforced 24 hours
a day from 11:59 p.m. on December 31, 2019 until 11:59 p.m. on July 1,
2020.
(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: December 23, 2019.
A.J. Tiongson,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2019-28115 Filed 1-2-20; 8:45 am]
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