[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Rules and Regulations]
[Pages 59231-59234]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22902]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0705]
RIN 1625-AA11


Regulated Navigation Area--Tappan Zee Bridge Construction 
Project, Hudson River; South Nyack and Tarrytown, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is establishing a regulated navigation area 
(RNA) on the navigable waters of the Hudson River surrounding the 
Tappan Zee Bridge. This temporary interim rule allows the Coast Guard 
to enforce speed and wake restrictions and prohibit all vessel traffic 
through the RNA during bridge replacement operations, both planned and 
unforeseen, that could pose an imminent hazard to persons and vessels 
operating in the area. This rule is necessary to provide for the safety 
of life in the regulated area during the construction of the bridge.

DATES: This rule is effective with actual notice from 5 a.m. on 
September 15, 2013 until 11:59 p.m. on December 31, 2018. In compliance 
with 5 U.S.C. 552 (a)(1), this rule is effective without actual notice 
from the date that it is published in the Federal Register, September 
26, 2013 until 11:59 p.m. on December 31, 2018.
    Comments and related material will be accepted and reviewed by the 
Coast Guard through December 26, 2013.
    Requests for public meetings must be received by the Coast Guard on 
or before October 17, 2013.

ADDRESSES: 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., Washington, 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: http://www.regulations.gov.
    (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 is 202-366-9329.
    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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Chief Craig D. Lapiejko, Waterways Management at Coast 
Guard First District, telephone 617-223-8385, email 
[email protected]; or LT Hannah Eko, Coast Guard Sector New 
York Waterways Management Division, U.S. Coast Guard; telephone 718-
354-4114, email [email protected]. If you have questions on viewing 
or submitting material to the docket, call Barbara Hairston, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
RNA Regulated Navigation Area

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

[[Page 59232]]

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 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

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. You may, 
however, 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

    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 notice of 
proposed rulemaking (NPRM) with respect to this rule because publishing 
an NPRM would be impracticable. 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. The Coast Guard will consider 
comments in issuing a subsequent temporary interim rule or temporary 
final rule.
    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. 
Construction is scheduled to begin on September 15, 2013, and it is 
necessary to have the rule effective by that date.

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 in defined water areas that 
are determined to have hazardous conditions and in which vessel traffic 
can be regulated in the interest of safety.
    This rule is prompted by the navigation safety situation created by 
the construction of the Tappan Zee Bridge. The Coast Guard has 
discussed this project with New York State Thruway Authority and Tappan 
Zee Constructors, LLC to determine whether the project can be completed 
without channel closures. 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 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, and barges positioned in the channel with a restricted 
ability to maneuver. At present, New York State Thruway Authority and 
Tappan Zee Constructors, LLC has not submitted a plan for waterway 
closures.

D. Discussion of the Interim Rule

    The Coast Guard is establishing a RNA on the navigable waters of 
the Hudson River surrounding the Tappan Zee Bridge, NY. This RNA allows 
the Captain of the Port Sector New York (COTP) to establish speed and 
wake restrictions and to prohibit vessel traffic on this portion of the 
river for limited periods when necessary for the safety of vessels and 
workers during construction work in the channel. The Coast Guard will 
enforce a five knot speed limit as well as a ``NO WAKE'' zone and will 
be able to close the designated area to all vessel traffic under any 
circumstances, planned or unforeseen, that pose an imminent threat to 
waterway users or construction operations in the area. Complete 
waterway closures will be minimized to that period absolutely necessary 
and made with as much advanced notice as possible. During closures, 
mariners may request permission from the COTP to transit through the 
RNA.
    Entry into, anchoring, or movement within this RNA during a closure 
is prohibited unless authorized by the COTP or a designated 
representative.
    If the project is completed before December 31, 2018, the COTP will 
suspend enforcement of the RNA. The COTP will ensure that any notice of 
the suspension of enforcement reaches affected segments of the public 
by all 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 by contacting the Coast 
Guard Sector New York Command Center at (718) 354-4353.

[[Page 59233]]

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 by 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 RNA for limited durations and the RNA 
covers only a small portion of the navigable waterways. Furthermore, 
entry into this RNA during closure may be authorized by the COTP New 
York or designated representative.
    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 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.
    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 regulated areas during a vessel 
restriction period.
    The RNA will not have a significant economic impact on a 
substantial number of small entities for the following reasons: The RNA 
will be of limited size and any waterway closures will be of short 
duration, and entry into this RNA during a closure is possible if the 
vessel has Coast Guard authorization. Additionally, 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 and 
Broadcast Notice to Mariners
    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, 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.

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).

5. Federalism

    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 an 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.

[[Page 59234]]

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.

14. Environment

    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. This rule is categorically excluded from 
further review under paragraph 34(g) of Figure 2-1 of the Commandant 
Instruction. An environmental analysis checklist and a categorical 
exclusion determination supporting this 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.

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:  33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0174 to read as follows:


Sec.  165.T01-0174  Regulated Navigation Area-Tappan Zee Bridge 
Construction Project, Hudson River; South Nyack and Tarrytown, NY.

    (a) Boundaries. The following is a regulated navigation area; all 
waters north of a line drawn from the following approximate positions: 
41[deg]04'17.37'' N, 073[deg]55'13.16'' W on the western shoreline; 
thence to 41[deg]04'10.97'' N, 073[deg]55'05.05'' W; thence to 
41[deg]04'10.03'' N, 073[deg]55'03.42'' W; thence to 41[deg]04'07.14'' 
N, 073[deg]54'54.48'' W; thence to 41[deg]04'05.30'' N, 
073[deg]54'43.18'' W; thence to 41[deg]04'04.72'' N, 073[deg]52'22.52'' 
W; thence to 41[deg]04'02.52'' N, 073[deg]52'16.13'' W; thence to 
41[deg]03'59.74'' N, 073[deg]52'10.83'' W; thence to a point on the 
eastern shoreline at 41[deg]03'54.39'' N, 073[deg]52'03.26'' W; and all 
waters south of a line drawn from the following approximate positions: 
41[deg]04'34.79'' N, 073[deg]55'03.26'' W on the western shoreline; 
thence to 41[deg]04'33.62'' N, 073[deg]55'01.52'' W; thence to 
41[deg]04'26.14'' N, 073[deg]54'53.96'' W; thence to 41[deg]04'23.76'' 
N, 073[deg]54'50.57'' W; thence to 41[deg]04'21.58'' N, 
073[deg]54'43.77'' W; thence to 41[deg]04'20.96'' N, 073[deg]52'20.17'' 
W; thence to 41[deg]04'20.31'' N, 073[deg]52'15.83'' W; thence to 
41[deg]04'16.76'' N, 073[deg]52'04.52'' W; thence to a point on the 
eastern shoreline at 41[deg]04'13.84'' N, 073[deg]51'59.44'' W.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.10, 165.11, and 165.13 apply within the RNA.
    (2) In accordance with the general regulations, entry into, 
anchoring, or movement within the RNA, during periods of enforcement, 
is prohibited unless authorized by the Captain of the Port New York 
(COTP) or his on-scene representative. The ``on-scene 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 
on-scene representative may be on a Coast Guard vessel; New York State 
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.
    (3) During periods of enforcement, entry and movement within the 
RNA is subject to a ``Slow-No Wake'' speed limit. 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 when 
traveling with a strong current. All vessels must proceed through the 
area with caution and operate in such a manner as to produce no wake.
    (4) During periods of enforcement, all persons and vessels must 
comply with all orders and directions from the COTP or the COTP's on-
scene representative.
    (5) During periods of enforcement, 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.
    (6) Vessel operators desiring to enter or operate within the 
regulated area when it is closed shall contact the COTP or the on-scene 
representative via VHF channel 16 or 718-354-4353 (Sector New York 
Command Center) to obtain permission.
    (7) 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.
    (c) Enforcement Periods. This regulation is enforceable 24 hours a 
day from 5:00 a.m. on September 15, 2013 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 all appropriate means to be given the widest publicity 
among 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 is suspended as well as the date and time that 
enforcement will resume.
    (2) Violations of this RNA may be reported to the COTP at 718-354-
4353 or on VHF-Channel 16.

    Dated: September 6, 2013.
V.B. Gifford,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard 
District.
[FR Doc. 2013-22902 Filed 9-25-13; 8:45 am]
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