[Federal Register Volume 82, Number 190 (Tuesday, October 3, 2017)]
[Rules and Regulations]
[Pages 45984-45986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21232]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2017-0937]
RIN 1625-AA00


Safety Zone; Belt Parkway Bridge Construction, Gerritsen Inlet; 
Brooklyn, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of Gerritsen Inlet surrounding the Belt Parkway 
Bridge. This action is necessary to provide for the safety of life on 
these navigable waters in Brooklyn, NY, during bridge replacement 
operations, both planned and unforeseen, until the new bridge is built 
and the existing bridge is removed. This regulation prohibits persons 
and vessels from being in the safety zone unless authorized by the 
Captain of the Port New York or a designated representative.

DATES: This rule is effective without actual notice from October 3, 
2017 through December 31, 2018. For the purposes of enforcement, actual 
notice will be used from 12:01 a.m. on October 1, 2017 through October 
3, 2017.
    Comments and related material may be received by the Coast Guard 
during the effective period.

ADDRESSES: You may submit comments identified by docket number USCG-
2017-0937 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion for further instructions on submitting comments.

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, telephone 718-354-4195, email 
[email protected] or Mr. Craig Lapiejko, Coast Guard First 
District Waterways Management Branch, telephone 617-223-8351, 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
FR Federal Register
NPRM Notice of proposed rulemaking
NYC DOT New York City Department of Transportation
Sec.  Section
TIR Temporary Interim Rule
U.S.C. United States Code

II. Background Information and Regulatory History

    In a letter received by the Coast Guard on May 16, 2013 NYC DOT and 
their contractors outlined the first five phases of operations that 
require in-channel work in the construction and demolition of the Belt 
Parkway Bridge. On November 29, 2013, the Coast Guard published a NPRM 
titled ``Safety Zone; Belt Parkway Bridge Construction, Gerritsen 
Inlet, Brooklyn, NY'' (78 FR 71546). 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 December 
20, 2013, we received no comments.
    On May 12, 2014, the Coast Guard published a TIR and request for 
comments titled ``Safety Zone; Belt Parkway Bridge Construction, 
Gerritsen Inlet, Brooklyn, NY'' (79 FR 26848). During the comment 
period that ended June 2, 2014, we received no comments.
    On July 25, 2014 the Coast Guard published a correcting amendment 
titled ``Safety Zone; Belt Parkway Bridge Construction, Gerritsen 
Inlet, Brooklyn, NY'' (79 FR 43255). There we corrected an inadvertent 
error included in one of the coordinates of the safety zone.
    The NYC DOT has requested the USCG safety zone and the USCG bridge 
permit be extended until June 30, 2018, to complete all remaining 
contract operations in and over the channel, including, but not limited 
to, substructure concrete placements, steel erection, concrete bridge 
deck placements, installation of navigation lighting, channel clean up 
and final fathometric surveying. The Coast Guard is issuing this TIR 
with an effective date through December 31, 2018 in case of additional 
project delays due to unforeseen circumstances.
    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), the Coast 
Guard finds that good cause exists for not publishing a notice of 
proposed rulemaking with respect to this rule because it is 
impracticable as it is necessary to protect the safety of both the 
construction crew and the waterway users operating in the vicinity of 
the bridge construction zone. 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.
    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. It would be impracticable and 
contrary to the public interest to delay promulgating this rule, for 
the reasons stated above. The Coast Guard will enforce the safety zone 
described in this rule to all vessel traffic during circumstances that 
pose an imminent threat to waterway users operating in the area. The 
Coast Guard will provide as much advanced notice as possible prior to 
enforcement.

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 
the construction of the Belt Parkway replacement bridge over Gerritsen 
Inlet will be a safety concern for anyone within approximately 300 feet 
of the existing bridge. This rule is needed to protect personnel, 
vessels, and the marine environment in the navigable waters within the 
safety zone during bridge construction.

[[Page 45985]]

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published 
November 29, 2013 or on our TIR published May 12, 2014. There are no 
changes in the regulatory text of this rule from the proposed rule in 
the NPRM or in the previous TIR except for the effective period.
    This rule establishes a safety zone from 12:01 a.m. on October 1, 
2017 through December 31, 2018. The safety zone will cover all 
navigable waters within approximately 300 feet of the existing Belt 
Parkway Bridge over Gerritsen Inlet. The duration of the zone is 
intended to ensure the safety of vessels and these navigable waters 
during bridge construction. 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 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, and pursuant to OMB guidance it is exempt from the requirements 
of Executive Order 13771.
    This regulatory action determination is based on the fact that 
vessel traffic will only be restricted from this safety zone for 
limited durations and the safety zone covers only a small portion of 
the navigable waterway. The Coast Guard will notify the public whenever 
the safety zone is being enforced and whenever enforcement is suspended 
through Broadcast Notice to Mariners via VHF-FM marine channel 16, 
First Coast Guard District Local Notice to Mariners at https://www.navcen.uscg.gov, Marine Safety Information Bulletins, or other 
appropriate means. The rule also allows people to seek permission to 
enter the zone. Additionally, NYC DOT has a Community Liaison for this 
project that also communicates with upstream mariners regarding the 
bridge project and channel status.

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 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.

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 environment. This 
rule involves a safety zone usually enforced for less than 1 hour that 
will prohibit entry within approximately 300 feet of the existing Belt 
Parkway Bridge over Gerritsen Inlet. It is categorically excluded from 
further review under paragraph 34(g) of

[[Page 45986]]

Figure 2-1 of the Commandant Instruction. A Record of Environmental 
Consideration supporting this determination is available in the docket 
where indicated under ADDRESSES.

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.

VI. 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 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, visit http://www.regulations.gov/privacyNotice.
    Documents mentioned in this TIR 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.

List of Subjects in 33 CFR Part 165

    Marine safety, Navigation (water), Reporting and recordkeeping 
requirements, 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.T01-0937 to read as follows:


Sec.  165.T01-0937   Safety Zone; Belt Parkway Bridge Construction, 
Gerritsen Inlet, Brooklyn, NY.

    (a) Location. The following area is a safety zone: All navigable 
waters of Gerritsen Inlet: Southeast of a line from 40[deg]35'09.46'' 
N., 073[deg]54'53.92'' W. to 40[deg]35'15.60'' N., 073[deg]54'42.07'' 
W., and Northwest of a line from 40[deg]35'04.88'' N., 
073[deg]54'45.43'' W. to 40[deg]35'10.34'' N., 073[deg]54'35.71'' W. 
(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 Captain of the Port Sector 
New York (COTP), 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 regulation is enforceable 24 hours a day from 12:01 a.m. 
on October 1, 2017 through December 31, 2018.
    (2) Prior to commencing or suspending enforcement of this 
regulation, the COTP and designated on-scene patrol personnel will 
notify the public whenever the regulation is being enforced and 
whenever enforcement is lifted, to include dates and times. The means 
of notification will include, but are not limited to, Broadcast Notice 
to Mariners and Local Notice to Mariners, Marine Safety Information 
Bulletins, or other appropriate means.
    (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 the 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: September 14, 2017.
M.H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2017-21232 Filed 10-2-17; 8:45 am]
 BILLING CODE 9110-04-P