[Federal Register Volume 82, Number 142 (Wednesday, July 26, 2017)]
[Rules and Regulations]
[Pages 34612-34614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-15694]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0486]
RIN 1625-AA00


Safety Zone; Kosciuszko Bridge Approach Spans Demolition, Newtown 
Creek, Brooklyn and Queens, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of Newtown Creek, NY within 2,000 feet of the existing 
Kosciuszko Bridge at mile 2.1. This action is necessary to provide for 
the safety of life on these navigable waters during the explosives 
demolition of the approach spans on each adjacent shoreline. This 
rulemaking prohibits persons and vessels from being in the safety zones 
unless authorized by the Captain of the Port New York or a designated 
representative.

DATES: This rule is effective without actual notice from July 26, 2017 
through December 31, 2017. For the purposes of enforcement, actual 
notice will be used from July 22, 2017 through July 26, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2017-0486 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, Sector New York Waterways Management 
Division; telephone 718-354-4195, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port New York
DHS Department of Homeland Security
FDNY New York City Fire Department
FR Federal Register
NPRM Notice of proposed rulemaking
NYSDOT New York State Department of Transportation
OSHA Occupational Safety and Health Administration
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    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. On April 25, 2017, NYSDOT notified the Coast Guard that the 
contractor requires a short term closure of Newtown Creek for the 
energetic felling of the existing Kosciuszko Bridge approach spans over 
land using shaped charges. The shaped charges make multiple precise 
cuts in the steel bridge spans at the same instant. This allows the 
approach spans to fall directly to the ground below. There will be no 
debris field outside of the limits of the bridge. The tentative, 
primary demolition dates are the early morning hours of July 22 or 23, 
2017. The tentative back-up dates for these operations are the early 
morning hours of July 29 or 30, August 5 or 6, and August 12 or 13, 
2017. To ensure public safety the contractor requested the USCG 
establish a safety zone within 600-feet of the existing bridge for a 
three-hour duration during these operations. NYSDOT stated FDNY was 
working with the explosives demolition subcontractor and would provide 
a final exclusion zone limit during these operations in early May 2017.
    On May 15, 2017 the contractor notified the Coast Guard that the 
distance requested for the exclusion zone is 1,200 from the existing 
bridge during the explosives demolition. However, the subcontractor 
stated this is a preliminary distance for discussion purposes only. The 
final distance would not be provided until the contract is awarded and 
the subcontractor meets with NYSDOT, the general contractor, security 
forces, and other stakeholders. Due to this expanded distance and late 
notification the Coast Guard was unable to include this request within 
the existing bridge demolition rulemaking (Docket Number USCG-2016-
1048) for this bridge replacement project. The safety zone distance is 
to ensure that persons are not exposed to air overpressure (noise) 
levels above the 140 decibel impact guidelines under OSHA regulations 
codified at 29 CFR 1910.95 Table G-16--PERMISSIBLE NOISE EXPOSURES, 
Footnote 1. The Coast Guard proposes to make this rule enforceable 
through December 31, 2017, and to a greater distance (2,000 feet) than 
currently requested (1,200 feet), as a contingency for any unforeseen 
delays or revisions to the bridge approach spans demolition schedule or 
safety requirements based upon the final FDNY safety requirements.
    The Coast Guard is making this temporary rule effective less than 
30 days after publication in the Federal Register pursuant to authority 
under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 
553(d)). This provision authorizes an agency to make a rule effective 
less than 30 days after publication for good cause. We are issuing this 
rule, and 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 because waiting 30 days would be 
impracticable and contrary to the public interest. It is impracticable 
and contrary to the public interest to provide a full 30-days notice 
because this rule must be effective on July 22 or 23, 2017 to limit 
delays to NYSDOT and contractor schedules as part of this $555 million 
dollar infrastructure improvement project. FDNY requires the contractor 
to conduct the explosives demolition in the early morning hours on a 
weekend to reduce the impact to vehicle traffic on the bridge. This 
time frame is also expected

[[Page 34613]]

to reduce the impact on vessel traffic in Newtown Creek. If this rule 
is not made effective by this date, then it would inhibit the Coast 
Guard's ability to perform its statutory mission to ensure the safety 
of the maritime public.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231. The COTP has determined that potential hazards associated with 
these operations will be a safety concern for anyone within up to 
2,000-feet of the existing approach spans to the Kosciuszko Bridge at 
mile 2.1 over Newtown Creek. The purpose of this rule is to ensure the 
safety of individuals on the navigable waters within up to 2,000 feet 
of the approach spans of the existing Kosciuszko Bridge before, during, 
and after the explosive demolition operations.

IV. Discussion of the Rule

    This rule establishes a safety zone from July 22 through December 
31, 2017. The safety zone will cover all navigable waters of Newtown 
Creek within up to 2,000 feet of the existing approach spans to the 
Kosciuszko Bridge at mile 2.1 over Newtown Creek during the explosive 
demolition operations. The duration of the zone is intended to ensure 
the safety of individuals and these navigable waters before, during, 
and after the explosive demolition operations tentatively scheduled for 
the early morning hours on July 22 or 23, 2017. Backup dates for these 
operations are July 29 or 30, August 5 or 6, and August 12 or 13, 2017.

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 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 Executive Order 12866. 
Accordingly, it has not been reviewed by the Office of Management and 
Budget.
    This regulatory action determination is based on the size, 
location, and duration of the safety zone. Although vessel traffic will 
not be able to safely transit around this safety zone, enforcement of 
the safety zone will be limited in duration. The boundaries of the 
safety zone will be limited to the length upstream, and downstream, 
from the bridge as determined by FDNY for the explosives detonation to 
remain in compliance with existing OSHA Permissible Noise Exposure 
regulations. Moreover, the Coast Guard will issue Broadcast Notice to 
Mariners via VHF-FM marine channel 16 about the zone and the rule 
allows vessels to seek permission to enter 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 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 (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 
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 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 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 M16475.1D, 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

[[Page 34614]]

category of actions that do not individually or cumulatively have a 
significant effect on the human environment. This rule involves a 
safety zone lasting approximately three hours that will prohibit entry 
within a maximum of 2,000 feet of the existing approach spans to the 
Kosciuszko Bridge. It is categorically excluded from further review 
under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A 
Record of Environmental Consideration (REC) for Categorically Excluded 
Actions 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 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, and 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; 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.T01-0486 to read as follows:


Sec.  165.T01-0486   Safety Zone; Kosciuszko Bridge Approach Spans 
Demolition, Newtown Creek, Brooklyn and Queens, NY.

    (a) Location. The following area is a safety zone: All waters from 
surface to bottom of Newtown Creek within 2,000 feet of the existing 
approach spans to the Kosciuszko Bridge at mile 2.1, between a line 
drawn from the following approximate positions: 40[deg]43'46.7'' N., 
073[deg]56'10.5'' W. to 40[deg]43'44.3'' N., 073[deg]56'11.6'' W and 
from 40[deg]43'22.9'' N., 073[deg]55'29.0'' W. to 40[deg]43'20.3'' N., 
073[deg]55'36.0'' 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 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 safety zone is effective from 
July 22, 2017 to December 31, 2017 but will only be enforced when 
active approach span demolition 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: June 22, 2017.
Michael H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2017-15694 Filed 7-25-17; 8:45 am]
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