[Federal Register Volume 80, Number 4 (Wednesday, January 7, 2015)]
[Rules and Regulations]
[Pages 829-832]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29856]



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  Federal Register / Vol. 80, No. 4 / Wednesday, January 7, 2015 / 
Rules and Regulations  

[[Page 829]]



DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-1063]
RIN 1625-AA11


Regulated Navigation Area; Arthur Kill, NY and NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a Regulated Navigation Area 
(RNA) on the navigable waters of the Arthur Kill in New York and New 
Jersey. This RNA will allow the Coast Guard to enforce speed and wake 
restrictions and limit vessel traffic through the RNA during bridge 
replacement operations on the Goethals Bridge and during drilling, 
blasting, and dredging operations in support of the U.S. Army Corps of 
Engineers channel deepening project, both planned and unforeseen, which 
could pose an imminent hazard to persons and vessels operating in the 
area. This rule is necessary to provide for the safety of life on the 
navigable waters during construction on the Goethals Bridge and the 
channel deepening project.

DATES: This rule is effective without actual notice from January 7, 
2015 until October 31, 2018. For the purposes of enforcement, actual 
notice will be used from the date the rule was signed, December 2, 
2014, until January 7, 2015.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2013-1063. 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email LT Hannah Eko, Waterways Management, U.S. Coast Guard; 
telephone 718-354-4114, email [email protected]. If you have 
questions on viewing or submitting material to the docket, call Cheryl 
Collins, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Acronyms

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

A. Regulatory History and Information

    On September 25, 2013, a Bridge Permit was issued approving the 
location and plans for new construction of the Goethals Bridge, which 
spans the Arthur Kill.
    On April 14, 2014, we published a Notice of Proposed Rulemaking 
(NPRM) with respect to this rule (79 FR 20851) entitled Regulated 
Navigation Area; Arthur Kill, NY and NJ in the Federal Register. We 
received one comment on the proposed rule. The comment was sent on 
behalf of the American Waterways Operators (AWO), a national trade 
association for the U.S. tugboat, towboat, and barge industry. AWO made 
two recommendations concerning the proposed rule.
    The Coast Guard also held five navigational safety meetings 
concerning Arthur Kill 4 (AK-4) dredging and Goethals Bridge 
construction activities and navigational safety. The last meeting was 
held July 9, 2014.
    No public meeting was requested and none was held.

B. Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the 
authority to establish RNAs in defined water areas that are hazardous 
or in which hazardous conditions are determined to exist. See 33 U.S.C. 
1231 and Department of Homeland Security Delegation No. 0170.1.
    The Goethals Bridge spans the Arthur Kill at mile 11.5. The current 
structure of the Goethals Bridge will be replaced with a twin span 
south of the existing bridge. Work on the bridge commenced in December 
2013. New westbound construction has been underway since April 2013 and 
is expected to continue until December 2017. Substantial completion of 
both bridges is expected to occur in December 2017. Demolition of the 
main span of the currently existing bridge is expected to occur within 
the December 2016 to October 2018 timeframe.
    Currently, it is unknown whether explosives will be utilized for 
demolition purposes or whether the existing span will be lowered in 
increments into barges moored in the Arthur Kill. Final completion of 
the bridge project is expected to occur in October 2018.
    Dredging activities will resume in a portion of the Arthur Kill 
from December 2014 until December 2015. These activities may 
potentially involve drilling and underwater blasting of bedrock in the 
Arthur Kill navigable channel. Dredging operations may encroach on 
portions of the navigable channel, require the relocation of lateral 
aids to navigation, and create a reduction in the width of the 
navigational channel.
    The Coast Guard First District Commander has determined that this 
construction project poses dangers to the maritime public and this rule 
is necessary to ensure the safe transit of vessels in the area, and to 
protect all persons, vessels, and the marine environment.

C. Discussion of Comments, Changes and the Final Rule

    For the reasons discussed above, The Coast Guard is establishing a 
RNA on the navigable waters of the Arthur Kill from Port Ivory to the 
charted Graselli High Wires north of Pralls Island from December 2014 
through October 2018.
    Construction 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, the RNA will limit vessel speed and 
wake of all vessels operating in the vicinity of the bridge and 
dredging construction zone. This will be achieved by implementing a 
five (5)

[[Page 830]]

knot speed limit and ``NO WAKE'' zone in the vicinity of the 
construction as well as providing a means to suspend all vessel traffic 
for emergent situations that pose imminent threat to waterway users in 
the area. The RNA will also protect vessels desiring to transit the 
area by ensuring that vessels are only permitted to transit when it is 
safe to do so.
    The Coast Guard may close the RNA described in this rule to all 
vessel traffic during any circumstance that poses an imminent threat to 
waterway users operating in the area. Complete waterway closures will 
be made with as much advanced notice as possible.
    Further, the speed limit of five (5) knots will be in effect at all 
times within the RNA and all vessels must proceed through the area with 
caution and operate in such a manner as to produce no wake unless a 
higher minimum speed is necessary to maintain bare steerage. The Coast 
Guard will rely on the methods described in 33 CFR 165.7 to notify the 
public of the time and duration of any closure of the RNA.
    The Coast Guard received one comment during the 60-day NPRM comment 
period. The comment was authored by a representative of the American 
Waterway Operators and contained two recommendations. The first 
recommendation concerned notifying mariners at least 48 hours in 
advance of waterway closures on the Arthur Kill and ensuring that 
waterway closures last only as long as needed to ensure safe 
navigation. The second recommendation requested that the Coast Guard 
set up a vessel queue system that would allow vessels moving with the 
flood tide to access the right-of-way in the restricted portion of the 
Arthur Kill. AWO recommended that Vessel Traffic Service New York 
(VTSNY) administer the proposed queue system.
    The Coast Guard agrees with early notifications and will make every 
effort to notify mariners 48 hours or more in advance of waterway 
closures. We participated in five initial planning meetings with the 
USACE, NY and NJ Port Authorities, harbor and docking pilots, tug boat 
operators, and construction and dredge contractors between March and 
July 2014. The results of the meetings determined that there may be 
times when the Coast Guard will be unable to provide 48 hours notice to 
the public. However, this waterway is within the VTSNY area and, as 
such, VTSNY will serve to communicate waterway closures and impacts 
with as much notice as possible. The Coast Guard's decision to close 
the waterway will be influenced by the dynamic nature of the bridge 
construction, dredging process, and multitude of construction, 
drilling, and blasting equipment associated with the project. The 
associated hazardous conditions necessitate that all mariners comply 
with this RNA, as the conditions surrounding the construction, 
drilling, and blasting may change on a daily basis. Moreover, the Coast 
Guard will continue to meet with the USACE, harbor and docking pilots, 
tug boat operators, and the contractors to assess the need for a vessel 
queue system when the dredging and bridge contractors submit work plans 
to the Coast Guard. All waterway users have 24 hour access to VTSNY for 
immediate access to the Coast Guard, and there is ample time for the 
``Harbor Safety, Navigation, and Operations Committee of New York,'' 
which is composed of all waterway users, to address waterway closure or 
traffic management concerns that may arise. If a vessel queue system is 
needed, it will be administered on a case-by-case basis by the VTSNY. 
As such, the Coast Guard made no changes to the rule proposed in the 
NPRM based on comments received.

D. 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.
    We expect the economic impact of this rule to be minimal because 
this RNA only enforces a speed and wake restriction through a limited 
portion of the Arthur Kill, and will have limited traffic restrictions 
during operations involving bridge construction and dredging, both 
planned and unforeseen therefore causing only a minimal delay to a 
vessel's transit.

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 received zero comments from the Small Business 
Administration on this rule. 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 in a portion of 
the Arthur Kill from December 2014 to October 2018.
    The Coast Guard expects no significant economic impact on a 
substantial number of small entities, as mentioned in the Regulatory 
Planning and Review section above, because this rule only requires 
vessels to reduce their speed through a limited portion of the Arthur 
channel and will have limited traffic restrictions during operations 
involving bridge construction, both planned and unforeseen therefore 
causing only a minimal delay to a vessel's transit.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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

[[Page 831]]

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

    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.

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 the establishment of an RNA on portions 
of the Arthur Kill. 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.

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. 1226, 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, 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T01-1063 to read as follows:


Sec.  165.T01-1063  Regulated Navigation Area; Arthur Kill, NY and NJ.

    (a) Location. The following area is a Regulated Navigation Area 
(RNA): All navigable waters from Port Ivory to Grasselli High Wires 
north of Pralls Island in the Arthur Kill; bounded in the northeast by 
a line drawn from position 40[deg]38'43.260'' N, 074[deg]10'47.208'' W; 
to a point in position 40[deg]38'52.152'' N, 074[deg]10'47.748'' W; and 
bounded in the southwest by a line drawn from position 
40[deg]37'8.940'' N, 074[deg]12'19.116'' W; to a point in position 
40[deg]37'03.252'' N, 074[deg]12'02.052'' W. All geographic coordinates 
are North American Datum of 1983 (NAD 83).
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.10, 165.11, and 165.13 apply within the RNA.
    (2) Any vessel transiting through the RNA must make a direct 
passage. No vessel may stop, moor, anchor or loiter within the RNA at 
any time unless they are working on the bridge construction. Movement 
within the 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 (5) knots unless a higher minimum speed is necessary to maintain 
bare steerage.
    (3) There may be times that the First District Commander or the 
Captain of the Port (COTP) finds it necessary to close the RNA to 
vessel traffic. During times of limited closure, persons and vessels 
may request permission to enter the RNA by contacting the COTP or the 
COTP's on-scene representative on VHF-16 or via phone at 718-354-4353.
    (4) Any vessels transiting in the RNA must comply with all 
directions given to them by the COTP or the COTP's 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; or other designated 
craft; or on shore and communicating with a VTSNY Watchstander or 
vessels via VHF-FM radio or loudhailer. Members of the Coast Guard 
Auxiliary may be present to inform vessel operators of this regulation.
    (5) All other relevant regulations, including but not limited to 
the Rules of the Road, as codified in 33 CFR subchapter E, Inland 
Navigational Rules, remain in effect within the RNA and must be 
strictly followed at all times.

[[Page 832]]

    (6) Vessel Movement Reporting System (VMRS) users are prohibited 
from meeting or overtaking other vessels when transiting alongside an 
active work area where dredging and drilling equipment are being 
operated.
    (c) Effective and enforcement period. This regulation is effective 
and enforceable 24 hours a day from 12:01 a.m. on December 2, 2014 
until 11:59 p.m. on October 31, 2018.
    (d) Notification. The Coast Guard will rely on the methods 
described in 33 CFR 165.7 to notify the public of the time and duration 
of any closure of the RNA. Violations of this RNA may be reported to 
the COTP at 718-354-4353 or on VHF-Channel 16.

    Dated: December 2, 2014.
L.L. Fagan,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2014-29856 Filed 1-6-15; 8:45 am]
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