[Federal Register Volume 80, Number 235 (Tuesday, December 8, 2015)]
[Rules and Regulations]
[Pages 76206-76209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30906]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2014-1044]
RIN 1625-AA00


Safety Zone; Shore (Belt) Parkway Bridge Construction, Mill 
Basin; Brooklyn, NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing a safety zone on the navigable 
waters of Mill Basin surrounding the Shore (Belt) Parkway Bridge. This 
rule allows the Coast Guard to prohibit all vessel traffic through the 
safety zone 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 vicinity of the construction of the new Shore (Belt) 
Parkway Bridge and demolition of the old Shore (Belt) Parkway Bridge.

DATES: This rule is effective January 7, 2016.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2014-1044 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, Coast Guard Sector New York Waterways 
Management Division, U.S. Coast Guard 718-354-4195, email 
[email protected].

[[Page 76207]]


SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
E.O. Executive Order
FR Federal Register
LNM Local Notice to Mariners
nm Nautical miles
NPRM Notice of proposed rulemaking
NYC DOT New York City Department of Transportation
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On Friday, March 13, 2015 the Coast Guard published a NPRM titled, 
``Safety Zone; Shore (Belt) Parkway Bridge Construction, Mill Basin, 
Brooklyn, NY'' in the Federal Register (80 FR 13309). There we stated 
why we issued the NPRM, and invited comments on our proposed regulatory 
action related to this bridge construction. During the comment period 
that ended May 12, 2015, we received one comment. No public meetings 
were requested or held.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 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. The COTP New 
York has determined that potential hazards associated with the bridge 
construction may occur within a 200-yard radius of the bridge. The 
purpose of this rule is to ensure safety of vessels, workers, and the 
navigable waters in the safety zone associated with the bridge 
construction operations.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received one comment on our NPRM published March 
13, 2015. In response, there are two changes in the regulatory text of 
this rule from the published NPRM.
    A representative of Miramar Yacht Club, located on Sheepshead Bay, 
NY, submitted a comment identifying nine issues to the proposed 
rulemaking. Many of the omissions cited by Miramar Yacht Club occurred 
due to the limited construction schedule timeline in possession of the 
Coast Guard at the time the proposed rulemaking was published. The nine 
issues are as follows:
    1. Failure to require entry and egress to Mill Basin at least 3-4 
days every week during daylight hours.
    Access to Mill Basin will be provided daily during daylight hours. 
The existing work plan will only require an approximate 30-minute 
channel closure, approximately July through August, during steel 
erection. This is similar to the steel erection procedures and channel 
closures in use at the Shore (Belt) Parkway Bridge replacement project 
over Gerritsen Inlet, approximately 1.2 nm to the southwest. Upon 
completion of the new bridge, channel closures during demolition of the 
existing bridge are scheduled during the winter of 2016-2017. NYC DOT 
must still submit channel closure requests to USCG Sector New York for 
final approval. Enforcement times may last longer than 30 minutes 
during demolition of the existing Shore (Belt) Parkway Bridge.
    2. Failure to ensure that entry and egress to Mill Basin is 
available in advance of a named storm in order to take refuge and be 
hauled out at a boat yard.
    Entry and egress to Mill Basin will be available in advance of a 
named storm.
    3. Failure to require at least two weeks prior notice of pending 
closures to Mill Basin users.
    NYC DOT will provide at least two weeks' notice prior to pending 
channel closures. NYC DOT has established a community relations liaison 
position for this project as they have for the Shore (Belt) Parkway 
Bridge replacement project over Gerritsen Inlet. Persons requesting to 
be added to the liaison's notification list for project updates may 
email [email protected] or call 347-702-6430 extension 
114. Additional project information is available at https://www.facebook.com/beltparkway and http://www.nyc.gov/html/dot/downloads/pdf/beltpkwybrgs_eng.pdf.
    4. Failure to prohibit or significantly limit closures from May 
through October during high recreational traffic in Mill Basin.
    In actuality, channel closures are limited during this project. See 
our response in paragraph 1 above.
    5. Failure to restrict NYC DOT operations which create or are at 
risk of creating an imminent hazard to Mill Basin users or limit vessel 
access when vessel traffic is least affected.
    In actuality, channel closures are limited during this project. See 
our response in paragraph 1 above.
    6. Failure to require NYC DOT to establish and maintain a 
construction schedule which minimizes and mitigates interference with 
vessel access to, from, and through Mill Basin.
    In actuality, channel closures are limited during this project. See 
our response in paragraph 1 above. In addition, the USCG Bridge Permit 
5-09-1 requires that, ``All work shall be so conducted that the free 
navigation of the waterway is not unreasonably interfered with and the 
present navigable depths are not impaired. Timely notice of any and all 
events that may affect navigation shall be given to the District 
Commander during construction of the bridge''.
    7. Failure to address the fact that NYC DOT operations are 
subordinate to the USCG's obligations to keep access to the navigable 
waterways of the United States free from obstruction and interference 
and not vice-versa.
    The bridge is being constructed under the authority of a bridge 
permit issued by the USCG. The safety zone is being established under 
the Federal authorities listed in the Regulatory text. NYC DOT must 
still submit channel closure requests to USCG Sector New York for final 
approval. However, USCG Bridge Permit 5-09-1 states, ``Issuance of this 
permit does not relieve the permittee of the obligation or 
responsibility for compliance with the provisions of any other law or 
regulation as may be under the jurisdiction of any federal, state or 
local authority having cognizance of any aspect of the location, 
construction or maintenance of said bridge''.
    8. Failure to require the least burdensome restriction of access 
possible.
    See our response in paragraphs 1 and 6 above as to how channel 
closures are limited during this project.
    9. Failure to have a ``sun set'' provision in the rule which 
clarifies the temporary right to direct Mill Basin waterway closures.
    As stated in the NPRM (Discussion of Proposed Rule), the current 
construction completion date for the Shore (Belt) Parkway Bridge 
Replacement work over Mill Basin is 2021. Not publishing a contract 
completion date in the Regulatory text allows the USCG to enforce the 
safety zone if there are any unforeseen circumstances that prevents the 
contractors from finishing the project on time. If a contract 
completion date (``sun set provision'') was published in the Regulatory 
text and the project was not completed on time, then publication of an 
additional Temporary Final Rule would have been required that in all 
likelihood would not have provided a public comment period. Once the 
bridge project is complete, the USCG will disestablish this regulation 
via a Direct Final Rule.
    As a result of the comment we received, we are making the following 
two changes to the regulatory text:
    1. This regulation is assigned the permanent section number of 33 
CFR

[[Page 76208]]

165.161, instead of the temporary section number of 33 CFR 165.T01-1044 
as published in the NPRM. This is because we did not provide a project 
completion date in the regulatory text in case the project is not 
completed on time. We will disestablish this permanent rule by 
publishing a Direct Final Rule upon project completion.
    2. The Enforcement Periods notification regulations proposed in 
Sec.  165.161(c)(2) of the NPRM is revised to the standard notification 
requirement listed in 33 CFR 165.7. The two week notification process 
for channel closures does not allow sufficient time for us to draft, 
review, and obtain the COTP's signature, and have the Notification of 
Enforcement published in the Federal Register at least 30 days prior to 
each channel closure.
    This rule establishes a safety zone on January 7, 2016. The safety 
zone will cover all navigable waters within 200 yards of the Shore 
(Belt) Parkway Mill Basin Bridge. The duration of the zone is intended 
to ensure the safety of vessels, workers, and the navigable waters in 
the safety zone associated with the bridge construction and demolition 
operations. No vessel or person will be permitted to enter the safety 
zone without obtaining permission from the COTP or a designated 
representative.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders (E.O.s) related to rulemaking. Below we summarize our 
analyses based on a number of these statutes and E.O.s, and we discuss 
First Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 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. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, it has not been 
reviewed by the Office of Management and Budget.
    This regulatory action determination is based on the size, 
location, duration, and time-of-day of the safety zone. This safety 
zone will impact a small designated area of Mill Basin for 
approximately 30 minute intervals during weekdays when vessel traffic 
is normally low. Safety zone enforcement times may be longer during 
demolition operations of the old Shore (Belt) Parkway Bridge. Moreover, 
the Coast Guard will issue a District One Local Notice to Mariners 
(LNM) via http://www.navcen.uscg.gov/?pageName=lnmMain about the zone. 
In addition, NYC DOT has established a community liaison to notify 
affected mariners about this project. Persons requesting to be added to 
the liaison's notification list for project updates may email 
[email protected] or call 347-702-6430 extension 114.

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 received no comments from the Small Business 
Administration on this rulemaking. 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 
safety zone 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 E.O. 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 E.O. 13132.
    Also, this rule does not have tribal implications under E.O. 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 
Management Directive 023-01 and Commandant Instruction M16475.lD, 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

[[Page 76209]]

environment. This rule involves a safety zone lasting less than 30 
minutes during steel erection that will prohibit entry within 200 yards 
of the Shore (Belt) Parkway Bridge over Mill Basin. Enforcement times 
may last longer than 30 minutes during demolition of the old Shore 
(Belt) Parkway Bridge. It 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 will be 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.

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:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREA

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.  165.161 to read as follows:


Sec.  165.161  Safety Zone; Shore (Belt) Parkway Bridge Construction, 
Mill Basin, Brooklyn, NY.

    (a) Location. The following area is a safety zone: All waters from 
surface to bottom of Mill Basin within 200 yards of the Shore (Belt) 
Parkway Mill Basin bridge, east of a line drawn from 40[deg]36'24.29'' 
N., 073[deg]54'02.59'' W. to 40[deg]36'11.36'' N., 073[deg]54'04.69'' 
W., and west of a line drawn from 40[deg]36'21.13'' N., 
073[deg]53'47.38'' W. to 40[deg]36'11.59'' N., 073[deg]53'48.88'' W.
    (b) Definitions. The following definitions apply to this section:
    (1) Designated representative. A ``designated representative'' is 
any Coast Guard commissioned, warrant or petty officer of the U.S. 
Coast Guard who has been designated by the Captain of the Port (COTP) 
New York, 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.
    (2) Official patrol vessels. Official patrol vessels may consist of 
any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement 
vessels assigned or approved by the COTP.
    (c) Enforcement periods. (1) This safety zone is in effect 
permanently starting January 7, 2016, but will only be enforced when 
deemed necessary by the COTP.
    (2) The COTP will rely on the methods described in Sec.  165.7 to 
notify the public of the enforcement of this safety zone. Such 
notifications will include the date and times of enforcement, along 
with any pre-determined conditions of entry.
    (d) Regulations. (1) The general regulations contained in Sec.  
165.23, as well as the regulations in paragraphs (d)(2) and (3) of this 
section, apply.
    (2) During periods of enforcement, all persons and vessels must 
comply with all orders and directions from the COTP or a COTP's 
designated representative.
    (3) During periods of enforcement, upon being hailed by a U.S. 
Coast Guard vessel by siren, radio, flashing light, or other means, the 
operator of the vessel must proceed as directed.

    Dated: November 24, 2015.
M.H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2015-30906 Filed 12-7-15; 8:45 am]
BILLING CODE 9110-04-P