[Federal Register Volume 82, Number 34 (Wednesday, February 22, 2017)]
[Proposed Rules]
[Pages 11332-11334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-03439]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-1048]
RIN 1625-AA00


Safety Zone; Kosciuszko Bridge Construction, Newtown Creek, 
Brooklyn and Queens, NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish two safety zones on the 
navigable waters of Newtown Creek, NY. The first safety zone is within 
500 feet of the two barges and assist vessels to be used for the 
removal and loading of the existing center span from the Kosciuszko 
Bridge at mile 2.1. The second is from approximately 370 yards south 
(upstream) of the Kosciuszko Bridge at mile 2.1 and Newtown Creek's 
confluence with the East River at mile 0.0 during transport of the 
existing center span to an offsite location. This action is necessary 
to provide for the safety of life on these navigable waters during the 
lowering and securing of the existing bridge's center span onto two 
barges within the Federal navigation channel and during the barge's 
outbound transit through Newtown Creek to the East River tentatively 
scheduled during April-May, 2017. This proposed rulemaking would 
prohibit persons and vessels from being in the safety zones unless 
authorized by the Captain of the Port New York or a designated 
representative. We invite your comments on this proposed rulemaking.

DATES: Comments and related material must be received by the Coast 
Guard on or before March 24, 2017.

ADDRESSES: You may submit comments identified by docket number USCG-
2016-1048 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Mr. Jeff Yunker, Sector New York 
Waterways Management Division; telephone 718-354-4195, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

COTP Captain of the Port New York
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
NYSDOT New York State Department of Transportation
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    The Coast Guard issued a Bridge Permit dated August 21, 2013 
approving the location and construction of the Kosciuszko Bridge across 
Newtown Creek, mile 2.1, between the Boroughs of Queens and Brooklyn, 
NY. The bridge carries Interstate 278, also known as the Brooklyn-
Queens Expressway over Newtown Creek. On May 23, 2014 the New York 
State Department of Transportation awarded a $554 million dollar 
contract to design and build the replacement bridge. On December 4, 
2014 construction began on the eastbound replacement bridge. All 
vehicle traffic is expected to be shifted onto this new bridge in the 
spring of 2017. Once traffic has been shifted to the new bridge the 
existing bridge will be demolished and replaced with a new bridge 
carrying Interstate 278 westbound traffic over Newtown Creek.
    On November 29, 2016, NYSDOT notified the Coast Guard that it will 
be lowering the existing center span from the Kosciuszko Bridge over 
Newtown Creek at mile 2.1 onto two barges within the Newtown Creek 
Federal navigation channel, securing the center span to the barges for 
transit, rotating the barges, and towing the barges through Newtown 
Creek to the East River for final upland disposal. The center span is 
259 feet long, 88 feet 8 inches wide, 46 feet high, and weighs 2,400 
tons. This operation is dependent on the ongoing construction of the 
new eastbound span of the new Kosciuszko Bridge being built adjacent 
to, and south (upstream) of, the existing bridge and tides during 
daylight hours. NYSDOT has identified April 1-24, May 1-23, and May 30-
31, 2017 as being conducive to this operation. The Coast Guard proposes 
to make this rule enforceable through December 31, 2017 as a 
contingency for any unforeseen delays to the bridge construction 
schedule. The loading and securing of the bridge span to the two barges 
is expected to take a minimum of 24-hours and the towing time to the 
East River is expected to be one hour. The entire process is expected 
to last at least 48 hours. Hazards from this operation include 
accidental falling debris. The two barges will block at least 109 feet 
of the 130 foot wide Newtown Creek Federal navigation channel during 
loading, securing, and towing operations. The COTP has determined that 
potential hazards associated with these operations would be a safety 
concern for anyone within a 500-foot radius of the tugs and barges.
    The purpose of this rulemaking is to ensure the safety of vessels 
and the navigable waters within a 500-foot radius of the two barges and 
assist vessels when loading, securing, and transporting the center span 
of the Kosciuszko Bridge through Newtown Creek before, during, and 
after the operations. The Coast Guard proposes this rulemaking under 
authority in 33 U.S.C. 1231.

III. Discussion of Proposed Rule

    The COTP proposes to establish two safety zones for approximately 
48 hours between April 1 and May 31, 2017. The safety zone would cover 
all navigable waters of Newtown Creek within 500 feet of the two barges 
and assist vessels to be used for the removal and loading of the 
existing center span from the Kosciuszko Bridge at mile 2.1 and

[[Page 11333]]

within 500 feet of two barges and their assist vessels in Newtown Creek 
from approximately 370 yards south (upstream) of the existing 
Kosciuszko Bridge at mile 2.1 and Newtown Creek's confluence with the 
East River during transport of the existing center span to an offsite 
location. The duration of the zone is intended to ensure the safety of 
vessels and these navigable waters before, during, and after the 
loading, securing, rotating the two barges for transit, and 
transporting the center span of the Kosciuszko Bridge through Newtown 
Creek. No vessel or person would be permitted to enter the safety zones 
without obtaining permission from the COTP or a designated 
representative.
    The regulatory text we are proposing appears at the end of this 
document.

IV. Regulatory Analyses

    We developed this proposed 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 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This NPRM has not been designated 
a ``significant regulatory action,'' under Executive Order 12866. 
Accordingly, the NPRM 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 zones. Vessel traffic 
would not be able to transit around these safety zones as the two 
barges carrying the Kosciuszko Bridge center span would block a minimum 
of 109 feet of the 130 foot wide Federal navigation channel for 
approximately 48 hours during the loading, and securing of the center 
span on to the barges, and then rotating the barges in preparation for 
towing through Newtown Creek. During the approximate one-hour transit 
time from the bridge site to the East River vessels would not be able 
to meet or overtake the two barges with three assist tugs as the 
combined width of these vessels would be 109 feet and the Federal 
navigation channel is only 130 feet wide. However, the New York City 
Department of Environmental Protection, U.S. Concrete, Bayside Fuel Oil 
Depot, and the U.S. Environmental Protection Agency all reported the 
requested 48-hour channel closure would not negatively impact their 
operations south (upstream) of the bridge. U.S. Concrete stated they 
require at least two weeks' notice if the closure is anticipated to 
last longer than 48 hours. Facilities downstream of the bridge would 
not be required to move vessels moored at their facility as long as 
they do not extend into the Federal navigation channel and would be 
able to depart the facility before, or after, the two barges carrying 
the bridge span are towed past the facility. Moreover, the Coast Guard 
would issue a Local Notice to Mariners and a Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the zone.

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 
proposed 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 
safety zones may be small entities, for the reasons stated in section 
IV A above this proposed rule would not have a significant economic 
impact on any vessel owner or operator.
    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.
    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 proposed 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. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

C. Collection of Information

    This proposed rule would 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 proposed 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 proposed 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 proposed 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 proposed 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 proposed 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 made 
a preliminary determination that this

[[Page 11334]]

action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
proposed rule involves a stationary safety zone lasting approximately 
48 hours and a moving safety zone lasting approximately one hour that 
would prohibit transit within 500 feet of the two barges and assist 
vessels carrying the bridge span. Normally such actions are 
categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of Commandant Instruction M16475.lD. A preliminary 
environmental analysis checklist 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 
proposed 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.

V. 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 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, you may review a Privacy Act notice regarding the Federal 
Docket Management System in the March 24, 2005, issue of the Federal 
Register (70 FR 15086).
    Documents mentioned in this NPRM 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 Web site'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 record 
keeping requirements, Security measures, and Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, 160.5; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.T01-1048 to read as follows:


Sec.  165.T01-1048  Safety Zone; Kosciuszko Bridge Construction, 
Newtown Creek, Brooklyn and Queens, NY.

    (a) Location. (1) The following area is a safety zone: All waters 
from surface to bottom of Newtown Creek within 500 feet of the two 
barges and assist vessels while lowering and securing the existing 
Kosciuszko Bridge center span at mile 2.1 to the two barges. This area 
is bound by the following approximate positions: northwest of a line 
drawn from 40[deg]43'34.9'' N., 073[deg]55'42.0'' W. to 
40[deg]43'36.8'' N., 073[deg]55'39.8'' W. (approximately 500 feet south 
(upstream) of the Kosciuszko Bridge at mile 2.1), and southeast of a 
line drawn from 40[deg]43'40.6'' N., 073[deg]55'52.8'' W. to 
40[deg]43'43.1'' N., 073[deg]55'49.9'' W. (approximately 500 feet 
downstream of the Kosciuszko Bridge at mile 2.1) (NAD 83).
    (2) The following area is a moving safety zone: All waters from 
surface to bottom of Newtown Creek within 500 feet of the two barges 
and assist vessels while transiting Newtown Creek between Latitude 
40[deg]43'30.0'' N. (approximately 370 yards south (upstream) of the 
Kosciuszko Bridge at mile 2.1), and east of a line drawn from the 
following approximate positions: 40[deg]44'17.1'' N., 073[deg]57'45.6'' 
W. to 40[deg]44'10.4'' N., 073[deg]57'45.6'' W. (at the confluence with 
the East River) (NAD 83).
    (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 COTP to act on his or her 
behalf. A 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 section is effective from April 1 
to December 31, 2017 but will only be enforced when active center span 
lowering, securing, and towing operations are in progress.
    (2) The Coast Guard will rely on marine broadcasts and local notice 
to mariners to notify the public of the time and duration that the 
safety zone will be enforced. Violations of this safety zone may be 
reported to the COTP at 718-354-4353 or on VHF-Channel 16.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.23, as well as the following regulations, 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: January 18, 2017.
Michael H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2017-03439 Filed 2-21-17; 8:45 am]
 BILLING CODE 9110-04-P