[Federal Register Volume 83, Number 245 (Friday, December 21, 2018)]
[Rules and Regulations]
[Pages 65521-65523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27669]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2013-0705]
RIN 1625-AA00


Regulated Navigation Area and Safety Zone: Tappan Zee Bridge 
Construction Project, Hudson River; South Nyack and Tarrytown, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is extending the effective period of the 
temporary regulated navigation areas and safety zone for the navigable 
waters of the Hudson River, NY, surrounding the Tappan Zee Bridge. This 
rule will extend the effective period of the existing temporary interim 
rule for an additional year, now ending on December 31, 2019. This rule 
will continue to prohibit all persons and vessel traffic from the 
safety zone and enforce speed and wake restrictions for the Eastern and 
Western regulated navigation areas as cited in this rule unless 
exceptions are authorized by the First District Commander or a 
designated representative. These regulated navigation areas and safety 
zone continue to be necessary to protect personnel, vessels, and the 
marine environment from potential hazards during the removal of the 
existing Tappan Zee Bridge and construction of a new bridge.

DATES: The effective period of Sec.  165.T01-0174 is extended to 
December 31, 2019. The amendments in this rule are effective from 
December 31, 2018, through December 31, 2019.
    Comments and related material must be received by the Coast Guard 
on or before April 1, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2013-0705 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule. You may submit 
comments identified by docket number USCG-2013-0705 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. Craig Lapiejko, Waterways Management at Coast Guard 
First District, telephone 617-223-8351, email [email protected] 
or, Mr. Jeff Yunker, Coast Guard Sector New York Waterways Management 
Division, U.S. Coast Guard; telephone 718-354-4195, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
NYSTA New York State Thruway Authority
RNA Regulated Navigation Area
NPRM Notice of proposed rulemaking
TIR Temporary Interim Rule
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On September 26, 2013, the Coast Guard published a temporary 
interim rule (TIR) establishing a regulated navigation area (RNA) on 
the navigable waters of the Hudson River, NY, for the Tappan Zee Bridge 
replacement project (78 FR 59231). We received no comments on the 
September 26, 2013, TIR. No public meeting was requested, and none was 
held. Construction on the Tappan Zee Bridge replacement project began 
on October 1, 2013.
    On July 25, 2014, the Coast Guard published a change to the 
original TIR which established a new safety zone and expanded the RNA 
to create both an Eastern and Western RNA for the Tappan Zee Bridge 
replacement project on navigable waters of the Hudson River, NY (79 FR 
43250). We received two comments on the July 25, 2014, TIR. The first 
comment referenced an unrelated rulemaking effort to establish 
anchorage locations along the Hudson River. The second comment merely 
provided the environmental checklist for the TIR. No public meeting was 
requested, and none was held.
    Today's TIR extends the effective period of the rule for one year 
until December 31, 2019, due to delays of the Tappan Zee Bridge 
replacement project.
    On August 23, 2018, the NYSTA requested the RNAs and safety zone be 
extended until December 31, 2019, to complete all remaining contract 
operations in and over the Hudson River, including, but not limited to 
steel erection, concrete bridge deck placements, installation of 
navigation lighting, and removal of the original Tappan Zee Bridge.
    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)(B), the Coast 
Guard finds that good cause exists for not publishing a NPRM with 
respect to this rule because doing so would be impracticable and 
contrary to the public interest. The notice allowing the construction 
project to proceed and providing updated timelines for the project was 
only recently finalized and provided to the Coast Guard, which did not 
give the Coast Guard enough time to publish a NPRM, take public 
comments, and issue a final rule before the existing regulation 
expires. Timely action is needed to respond to the potential safety 
hazards associated with removal of the original bridge and construction 
of a new replacement bridge. It would be impracticable and contrary to 
the public interest to publish a NPRM because we must extend the 
effective period of the safety zone and RNAs as soon as possible to 
protect the safety of the waterway users, construction crew, and other 
personnel associated with the bridge project. A delay of the project to 
accommodate a full notice and comment period would delay necessary 
operations, result in increased costs, and delay the completion date of 
the bridge project and subsequent reopening of the Hudson River for 
normal operations.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for

[[Page 65522]]

making it effective less than 30 days after publication in the Federal 
Register. For reasons stated in the preceding paragraph, delaying the 
effective date of this rule would be impracticable and contrary to the 
public interest because timely action is needed to respond to the 
potential safety hazards associated with the project.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
1231.
    The First District Commander has determined that potential hazards 
exist associated with this bridge construction, and removal project 
that has already commenced, and will continue through December 31, 
2019, will be a safety concern for anyone within the work zone. The 
construction and removal of the bridge continues to be extremely 
complex and presents many safety hazards including overhead crane 
operations, overhead cutting operations, potential falling debris, and 
barges positioned in the Hudson River, and along the length of the 
bridge. In order to mitigate the inherent risks involved with the 
removal of a bridge, and installation of the new bridge, it is 
necessary to control vessel movement through the area. The purpose of 
this TIR is to ensure the safety of waterway users, the public, and 
construction workers for the duration of the new bridge construction 
and demolition. Heavy-lift operations are sensitive to water movement, 
and wake from passing vessels could pose significant risk of injury or 
death to construction workers. In order to minimize such unexpected or 
uncontrolled movement of water, any vessel transiting through the 
Western and Eastern RNA must make a direct and expeditious passage. No 
vessel may stop, moor, anchor, or loiter within the RNA at any time 
unless they are working on the bridge construction operations. This 
rule is needed to protect personnel, vessels, and the marine 
environment on the navigable waters of the Hudson River, NY, during the 
bridge project.

IV. Discussion of the Rule

    This rule extends the effective period of the temporary interim 
rule for the navigable waters of the Hudson River, NY, surrounding the 
Tappan Zee Bridge for one additional year until December 31, 2019. 
There are no other changes to the regulatory text of this rule as cited 
in 33 CFR Sec.  165.T01-0174. This rule will continue to prohibit all 
persons and vessel traffic from the safety zone and enforce speed and 
wake restrictions for the Eastern and Western RNAs unless exceptions 
are authorized by the First District Commander 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 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, it 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: Vessel traffic would only be restricted from the Eastern RNA 
for limited durations. The Eastern RNA covers only a small portion of 
the navigable waterway which includes the Federal navigation channel. 
Furthermore, while the Federal navigation channel on the Hudson River 
is closed, vessels that can safely navigate outside the channel may 
still be able to transit through the Western RNA or the portion of the 
Eastern RNA which does not encompass the Federal Navigation channel, 
depending on the project schedule and location of project vessels in 
these areas. The Coast Guard does not expect to receive any additional 
requests to close the entire Federal navigation channel in 2019, based 
upon the current construction progress, except in case of an emergency.
    Advance public notifications will also be made to local mariners 
through appropriate means, which may include but are not limited to, 
Local Notice to Mariners, Broadcast Notice to Mariners, and the Boater 
Safety Information section of the project website at http://www.newnybridge.com.

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 
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 
RNAs and safety zone may be small entities, for the reasons stated in 
section V.A above, this rule will not have a significant 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 temporary interim 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.

[[Page 65523]]

    Also, this 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 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 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 rule under Department of Homeland Security 
Directive 023-01, which guides 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 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 
extending the effective time for one year restricting vessel movement 
within regulated navigation areas and safety zone on the navigable 
waters of Hudson River in vicinity of the Tappan Zee Bridge 
construction project. Normally such actions are 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 preliminary Record of 
Environmental Consideration 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 temporary interim 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.

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 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, 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 website'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 
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. Amend Sec.  165.T01-0174 by revising the introductory text of 
paragraph (d) to read as follows:


Sec.  165.T01-0174   Regulated Navigation Areas and Safety Zone Tappan 
Zee Bridge Construction Project, Hudson River; South Nyack and 
Tarrytown, NY.

* * * * *
    (d) Enforcement periods. This regulation will be enforced 24 hours 
a day from 11:59 p.m. on December 31, 2018 until 11:59 p.m. on December 
31, 2019.
* * * * *

    Dated: December 18, 2018.
Andrew J. Tiongson,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2018-27669 Filed 12-20-18; 8:45 am]
 BILLING CODE 9110-04-P