[Federal Register Volume 83, Number 232 (Monday, December 3, 2018)]
[Rules and Regulations]
[Pages 62253-62256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26187]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-1002]
RIN 1625-AA00


Safety Zone; Arthur Kill and Old Place Creek, Elizabeth, NJ and 
Staten Island, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
navigable waters within a 500-yard radius of the old Goethals Bridge 
Pier C on the Staten Island, NY side of the Federal navigation channel. 
The safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by underwater explosives 
demolition of Pier C. Entry of vessels or persons into this zone is 
prohibited unless specifically authorized by the Captain of the Port 
New York and New Jersey or a designated representative.

DATES: This rule is effective without actual notice from December 3, 
2018 through December 31, 2018. For the purposes of enforcement, actual 
notice will be used from November 11, 2018 through December 3, 2018.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-1002 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. Craig Lapiejko, Waterways Management, First Coast 
Guard District; telephone (617) 223-8351, email 
[email protected]. You may also call or email Mr. Jeff Yunker, 
Waterways Management Division, U.S. Coast Guard Sector New York, 
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 and New Jersey
DHS Department of Homeland Security
FR Federal Register
First District USCG First District Bridge Administration
NPRM Notice of proposed rulemaking
PANYNJ Port Authority of NY and NJ
RNA Regulated Navigation Area
Sec.  Section
TFR Temporary Final Rule
U.S.C. United States Code

II. Background Information and Regulatory History

    On April 14, 2014 the Coast Guard published a NPRM entitled 
``Regulated Navigation Area; Arthur Kill, NY and NJ'' in the Federal 
Register (79 FR 20851) that would allow the Coast Guard to enforce 
speed and wake restrictions and prohibit vessel traffic through the RNA 
during bridge replacement operations on the Goethals Bridge that could 
pose an imminent hazard to persons and vessels operating in the area. 
This proposed rule would also allow the Coast Guard to enforce 
navigation restrictions and prohibit vessel traffic during drilling, 
blasting, and dredging operations in support of the U.S. Army Corps of 
Engineers channel deepening project. Proposed work included underwater 
explosives demolition of the old Goethals Bridge Pier C. We received 
one comment on this proposed rule. It advocated notifying mariners of 
waterway closures at least forty eight hours in advance, and that the 
closures remain in place only as long as required for safety purposes. 
It also recommended that the Coast Guard work to institute a queue 
system or other vessel movement scheme that allowed vessels moving with 
a flood tide to access the right of way in the restricted portion of 
the Arthur Kill.
    On January 7, 2015, the Coast Guard published a TFR entitled 
``Regulated Navigation Area; Arthur Kill, NY and NJ'' in the Federal 
Register (80 FR 00829) that allowed the Coast Guard to enforce speed 
and wake restrictions and prohibit vessel traffic through the RNA 
during bridge replacement operations on the Goethals Bridge that could 
pose an imminent hazard to persons and vessels operating in the area. 
This rule also allowed the Coast Guard to enforce navigation 
restrictions and prohibit vessel traffic during drilling, blasting, and 
dredging operations in support of the U.S. Army Corps of Engineers 
channel deepening project. The planned work still included underwater 
explosives demolition of the old Goethals Bridge Pier C. The Coast 
Guard said it would make every effort to notify mariners forty eight 
hours before a waterway closure, but that this may not always be 
possible due to many dynamic factors in the project. It also said it 
will meet with various other agencies to assess the need for a vessel 
queue system and administer a queue system if needed on a case by case 
basis by Vessel Traffic Service New York. This rule was in effect from 
January 7, 2015 until October 31, 2018.
    On October 17, 2018 the PANYNJ contractor's project manager 
notified the First District and Vessel Traffic Service New York that 
the previously scheduled underwater explosives demolition of the old 
Goethals Bridge Pier C below mean lower water had been delayed from 
late October 2018 until Sunday, November 11, 2018 at approximately 
10:20 a.m. The contractor requested the Coast Guard create a safety 
zone to prohibit vessels and persons within a 500 yard radius of old 
Goethals Bridge Pier C from approximately 10 a.m. until 11:00 a.m. 
During this approximate 60-minute window, no vessels or persons will be 
authorized within the safety zone unless authorized by the COTP New 
York and New Jersey.
    The Coast Guard is issuing this temporary 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

[[Page 62254]]

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)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because the schedule for the demolition of 
old Goethals Bridge Pier C was only recently finalized and extended 
past the original project completion date, and timely action is needed 
to respond to the potential safety hazards associated with this 
demolition project. It is impracticable and contrary to the public 
interest to publish an NPRM because we must establish this safety zone 
by November 11, 2018 to allow for the timely demolition of old Goethals 
Bridge Pier C and promote the safety of the public.
    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. Delaying the effective date of 
this rule would be impracticable because immediate action is needed to 
respond to the potential safety hazards associated with underwater 
explosives demolition of old Goethals Bridge Pier C.

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 
underwater explosives demolition tentatively scheduled on Sunday, 
November 11, 2018, will be a safety concern for anyone within a 500-
yard radius of the old Goethals Bridge Pier C. This rule is needed to 
protect personnel, vessels, and the marine environment in the navigable 
waters within the safety zone during underwater explosives demolition 
of the old Goethals Bridge Pier C.

IV. Discussion of the Rule

    This rule establishes a safety zone from 10:00 a.m. on November 11, 
2018 through 11:59 p.m. on December 31, 2018. This rule will be 
enforced from 10:00 a.m. until 11:00 a.m. on November 11, 2018. The 
safety zone covers all navigable waters of the Arthur Kill and Old 
Place Creek within approximately 500 yards of the old Goethals Bridge 
Pier C in approximate position 40[deg]38'07.7'' N, 074[deg]11'46.4'' W 
(NAD 83). The Coast Guard is publishing this rulemaking to be 
effective, and enforceable, through December 31, 2018 in case the 
project is delayed due to unforeseen circumstances.
    The duration of the zone is intended to protect personnel, vessels, 
and the marine environment in these navigable waters while the 
underwater remains of Pier C are demolished for eventual removal. No 
vessel or person will be permitted to enter the safety zone without 
obtaining permission from the COTP New York and New Jersey or a 
designated representative.
    The Coast Guard will notify the public and local mariners of this 
safety zone through the Local Notice to Mariners and/or Broadcast 
Notice to Mariners via VHF-FM marine channel 16 in advance of any 
scheduled enforcement period.

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 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB), and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the following 
reasons: (1) The safety zone only impacts a small designated area of 
the Arthur Kill and Old Place Creek, (2) the zone will only be enforced 
for approximately 60 minutes during the underwater explosives 
demolition of the old Goethals Bridge Pier C, (3) vessels not 
constrained by their draft or length may still transit the Arthur Kill 
south of this safety zone, to, and from sea, via Raritan Bay Reaches 
and Sandy Hook Channel, (4) the demolition operations are scheduled on 
Sunday when commercial vessel traffic is less frequent, and (5) the 
demolition operations are scheduled in the late Fall when recreational 
vessel traffic is less frequent.

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 (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

[[Page 62255]]

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 
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 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 60 minutes that will prohibit entry 
within a 500 yard radius of the old Goethals Bridge Pier C during 
underwater demolition. It is categorically excluded from further review 
under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 
023-01-001-01, Rev. 01. 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.

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. 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.T01-1002 to read as follows:


Sec.  165.T01-1002  Safety Zone, Arthur Kill and Old Place Creek, 
Elizabeth, NJ and Staten Island, NY.

    (a) Safety zone boundaries. The following is a safety zone: All 
waters of the Arthur Kill, from surface to bottom, bound by the 
following approximate positions: All waters south of a line drawn from 
40[deg]38'23.7'' N, 074[deg]11'43.3'' W, thence to 40[deg]38'19.0'' N, 
074[deg]11'32.6'' W, and all waters north of a line drawn from 
40[deg]38'03.9'' N, 074[deg]12'07.8'' W, thence to 40[deg]37'54.9'' N, 
074[deg]11'58.7'' W (NAD 83).
    (b) Safety zone boundaries. The following is a safety zone: all 
waters of the Old Place Creek, from surface to bottom, bound by the 
following approximate positions: All waters northwest of a line drawn 
from the following approximate positions: 40[deg]37'52.7'' N, 
074[deg]11'44.3'' W, thence to 40[deg]37'52.9'' N, 074[deg]11'42.7'' W 
(NAD 83).
    (c) Definitions. As used in this section:
    Designated representative means any Coast Guard commissioned, 
warrant, petty officer, or designated Patrol Commander 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.
    Official patrol vessels means any Coast Guard, Coast Guard 
Auxiliary, state, or local law enforcement vessels assigned or approved 
by the COTP to enforce this section.
    (d) Regulations. When this safety zone is enforced, the following 
regulations, along with those contained in 33 CFR 165.23 apply:
    (1) During periods of enforcement, during active underwater 
explosives demolition, no person or vessel may enter or remain in the 
safety zones described in paragraphs (a) and (b) unless authorized by 
the COTP or the COTP's designated representative.
    (2) Any vessels transiting must comply with all orders and 
directions from the COTP or the COTP's designated representative.
    (3) Upon being hailed by a Coast Guard vessel by siren, radio, 
flashing light or other means, the operator of the vessel must proceed 
as directed.
    (4) Notwithstanding anything contained in this section, the Rules 
of the Road (33 CFR part 84--Subchapter E, inland navigational rules) 
are still in effect and must be strictly adhered to at all times.
    (d) Enforcement periods. This regulation is enforceable 24 hours a 
day from 10:00 a.m. on November 11, until 11:59 p.m. on December 31, 
2018, but will only be enforced during active underwater explosive 
demolition of the old Goethals Bridge Pier C. The underwater explosives 
demolition operations that will require enforcement of the safety zone 
regulations are tentatively scheduled to take place on November 11, 
2018, from approximately 10:00 a.m. until 11:00 a.m., unless delayed by 
weather, construction delays, or other unforeseen circumstances. The 
COTP will provide notice of the channel closure by appropriate means to 
the affected segments of the public. Such means of notification may 
include, but are not limited to, Broadcast Notice to Mariners and/or 
Local Notice to Mariners.
    (1) Notice of suspension of enforcement: If enforcement is 
suspended, the COTP will provide a notice of the suspension of 
enforcement by appropriate means to the affected segments of the 
public. Such means of notification may include, but are not limited to, 
Broadcast Notice to Mariners and/or Local Notice to Mariners. Such 
notification will include the approximate date and time that 
enforcement will be suspended as well as the approximate date and time 
that enforcement will resume.
    (2) Violations of this regulation may be reported to the COTP at 
(718) 354-4353 or on VHF-Channel 16.


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    Dated: November 9, 2018.
J.P. Tama,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2018-26187 Filed 11-30-18; 8:45 am]
 BILLING CODE 9110-04-P