[Federal Register Volume 84, Number 175 (Tuesday, September 10, 2019)]
[Rules and Regulations]
[Pages 47431-47433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19545]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0725]
RIN 1625-AA00


Safety Zone; Newtown Creek, New York, 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 300-foot radius of the Kosciuszko Bridge 
spans crossing Newtown Creek at mile 2.1. The safety zone is needed to 
protect personnel, vessels, and the marine environment from potential 
hazards created by final stay cable adjustments at each bridge tower 
anchorage conducted from barges within Newtown Creek. Entry of vessels 
or persons into this zone is prohibited unless specifically authorized 
by the U.S. Coast Guard Sector New York Captain of the Port (COTP) or 
the COTP's designated representative.

DATES: This rule is effective without actual notice from September 10, 
2019 through November 30, 2019. For the purposes of enforcement, actual 
notice will be used from August 27, 2019 through September 10, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2019-0725 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, 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
DHS Department of Homeland Security
FR Federal Register
LNM Local Notice to Mariners
NPRM Notice of proposed rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    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 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 doing so would be impracticable. The 
late finalization of project details did not give the Coast Guard 
enough time to publish an NPRM, take public comments, and issue a final 
rule before the final stay cable adjustments at each bridge tower 
anchorage is set to begin. It would be impracticable to delay 
promulgating this rule as it is necessary to establish this safety zone 
before the bridge stay cable adjustments begin on, or about, August 27, 
2019, to protect the safety of the waterway users, construction crew, 
and other personnel associated with the bridge replacement project. A 
delay of the replacement project to accommodate a full notice and 
comment period would delay necessary operations, result in increased 
costs, delay the date when the replacement bridge span is expected to 
be completed and open for normal vehicle traffic on August 28, 2019.
    The final stay cable adjustment operations could take place anytime 
between August 27, 2019 and November 30, 2019. However, we anticipate 
the installation operations to begin on August 27, 2019. The Coast 
Guard is publishing this rule to be effective through November 30, 2019 
in case the project is delayed due to unforeseen circumstances.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for

[[Page 47432]]

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 final stay cable adjustments 
conducted from barges in the navigable waters of Newtown Creek prior to 
the Kosciuszko Bridge westbound span opening for vehicle traffic.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port New York 
(COTP) has determined that potential hazards associated with final stay 
cable adjustments starting August 27, 2019, will be a safety concern 
for anyone within a 300-foot radius of the Kosciuszko Bridge spans at 
mile 2.1 over Newtown Creek. This rule is needed to protect personnel, 
vessels, and the marine environment in the navigable waters within the 
safety zone while the bridge construction is completed.

IV. Discussion of the Rule

    This rule establishes a safety zone from August 27, 2019 through 
November 30, 2019. The safety zone will cover all navigable waters 
within 300 feet of the Kosciuszko Bridge spans at mile 2.1 over Newtown 
Creek while vessels and machinery are being used by personnel to make 
final stay cable adjustments at each bridge tower anchorage. The 
duration of the zone is intended to protect personnel, vessels, and the 
marine environment in these navigable waters while the bridge cable 
stays are being adjusted. 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 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 
Newtown Creek, (2) the safety zone will only be enforced for 
approximately 30 hours from 5 p.m. on August 27, 2019 through 11 p.m. 
on August 28, 2019, instead of the originally requested 48 hours, 
during the final stay cable adjustments at each bridge tower anchorage 
on each side of Newtown Creek, or if there is an emergency or other 
unforeseen circumstance, (3) the contractor has already contacted 
previously identified upstream users about this waterway closure and 
received no negative responses. Moreover, the Coast Guard will issue a 
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the 
zone, issue a notice in the Local Notice to Mariners, and the rule 
would allow 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 (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 
call or email 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 call or email 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,

[[Page 47433]]

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 Environmental Planning COMDTINST 5090.1 (series), 
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 only 30 hours 
that will prohibit entry within 300 feet of the Kosciuszko Bridge spans 
crossing Newtown Creek at mile 2.1 while final stay cable adjustments 
are being made. It is categorically excluded from further review under 
paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental 
Planning Implementing Procedures. 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 call or email 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:  46 U.S.C. 70034, 70051; 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.T01-0725 to read as follows:


Sec.  165.T01-0725   Safety Zone, Newtown Creek, New York, NY.

    (a) Location. The following area is a safety zone: All waters of 
Newtown Creek within a 300-foot radius of the Kosciuszko Bridge spans 
at mile 2.1.
    (b) 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 the regulations in this section.
    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.
    (c) Regulations. (1) The general regulations contained in 
Sec. Sec.  165.20 and 165.23 apply.
    (2) During periods of enforcement, no person or vessel may enter or 
remain in the safety zone described in paragraph (a) of this section 
unless authorized by the Captain of the Port (COTP) or the COTP's 
designated representative. However, any vessel that is granted 
permission by the COTP or the COTP's designated representative must 
proceed through the area with caution and operate at a speed no faster 
than that speed necessary to maintain a safe course, unless otherwise 
required by the Navigation Rules.
    (3) During periods of enforcement, any vessels transiting must 
comply with all orders and directions from the COTP or the COTP's 
designated representative.
    (4) 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 by the Coast Guard.
    (5) The COTP will promulgate a notice of the channel closure or 
restrictions by appropriate means to the affected segments of the 
public. Such means of notification may include, but are not limited to, 
LNM and/or Broadcast Notice to Mariners.
    (d) Enforcement periods. (1) This section is effective without 
actual notice from September 11, 2019 through November 30, 2019. For 
the purposes of enforcement, actual notice will be used from August 27, 
2019 through September 11, 2019. This section will only be enforced 
during the final stay cable adjustments at each bridge tower anchorage.
    (2) If enforcement is suspended, the COTP will promulgate a notice 
of the suspension of enforcement by appropriate means. Such means of 
notification may include, but are not limited to, Broadcast Notice to 
Mariners and/or LNM. Such notification will include the approximate 
date and time enforcement will be suspended as well as the approximate 
date and time enforcement will resume.
    (3) Violations of the regulations in this section may be reported 
to the COTP at (718) 354-4353 or on VHF-Channel 16.

    Dated: August 21, 2019.
J.P. Tama,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2019-19545 Filed 9-9-19; 8:45 am]
 BILLING CODE 9110-04-P