[Federal Register Volume 84, Number 181 (Wednesday, September 18, 2019)]
[Rules and Regulations]
[Pages 49020-49022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19990]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-1060]
RIN 1625-AA00


Safety Zone; Unionport (Bruckner Expressway) Bridge, Westchester 
Creek, Bronx, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
the navigable waters within a 500-foot radius of the New York State 
Department of Transportation (NYSDOT) I-95 bridge structures to the 
north, and south, of the Unionport (Bruckner Expressway) Bridge, 
construction vessels, and machinery at mile 1.7 over Westchester Creek. 
The safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by installation of two 
temporary vertical lift bridges during the replacement of the existing 
Unionport (Bruckner Expressway) Bridge at mile 1.7 over Westchester 
Creek. When enforced, this regulation prohibits entry of vessels or 
persons into 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 September 18, 
2019 through May 31, 2019. For the purposes of enforcement, actual 
notice will be used from February 25, 2019 through September 18, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2018-1060 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
DHS Department of Homeland Security
FR Federal Register
LNM Local Notice to Mariners
NPRM Notice of proposed rulemaking
NYSDOT New York State Department of Transportation
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    Shoreside construction for Unionport Bridge replacement project 
started on July 17, 2017, and is tentatively scheduled for completion 
on, or about, July 13, 2021. During this project, removal and 
replacement of the original structure will take place. To accomplish 
these tasks, a temporary vertical lift bridge will be installed 
upstream, and downstream, of the original structure to facilitate 
construction and maintain shoreside vehicle traffic.
    On November 27, 2018, Lane Construction, the contractor selected 
for the Unionport Bridge construction project, submitted their 
regulation request to the Waterways Management Division of U. S. Coast 
Guard Sector New York. Lane Construction requested a temporary safety 
zone be established, possibly lasting up to 96 hours, within a 500-foot 
radius of the New York State Department of Transportation (NYSDOT) I-95 
bridge structures to the north, and south, of the Unionport (Bruckner 
Expressway) Bridge, construction vessels, and machinery, at mile 1.7 
over Westchester Creek during the float-in, erection, and installation 
of two temporary vertical lift spans by barge. We anticipate enforcing 
the safety zone during the heavy lift operations, occurring between 
approximately February 25, 2019 and February 28, 2019. The safety zone 
is expected to be enforced for approximately one 96-hour period when 
vessels are preparing for and conducting the temporary bridge 
installation operations. The duration of enforcement for the safety 
zone is intended to protect personnel, vessels, and the marine 
environment in these waters while the temporary bridge is being 
installed. During the enforcement period, all vessels and persons must 
obtain permission from the Captain of the Port New York or a designated 
representative before entering the safety zone.
    The temporary bridge installation operations could take place 
anytime between February 25, 2019 and May 1, 2019. However, we 
anticipated the installation operations to begin on February 25, 2019 
sta. The Coast Guard is publishing this rule to be effective through 
May 01, 2019 in case the project is delayed due to unforeseen 
circumstances.
    The Coast Guard will issue a LNM and/or a Broadcast Notice to 
Mariners via marine channel 16 (VHF-FM) with as much advance notice as 
possible for any period of waterway closure or as soon as practicable 
in response to unforeseen circumstances. Upon completion of temporary 
bridge installation bridges, enforcement of the safety zone will be 
suspended and notice given via Broadcast Notice to Mariners and LNM.
    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 good cause 
exists for not publishing a notice of proposed rulemaking (NPRM) with 
respect to this rule because doing so would be impracticable and 
contrary to the public interest. The late finalization of project 
details did not give the Coast Guard enough time to issue a modified 
bridge permit, publish an NPRM, take public comments, and issue a final 
rule before the installation of the two temporary vertical lift bridges 
is set to begin. It would be impracticable and contrary to the public 
interest to delay promulgating this rule as it is necessary to 
establish this safety zone before the temporary vertical lift bridge 
installations begin on, or about, February 25, 2019, to protect the 
safety of the waterway users, construction crew, and other personnel 
associated with the bridge replacement project. A

[[Page 49021]]

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 project is expected to be 
completed, and open the new bridge 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. 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 construction project.

II. 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 
floating in of two, temporary vertical lift bridges starting on or 
about February 25, 2019. This rule is needed to protect personnel, 
vessels, and the marine environment on the navigable waters of 
Westchester Creek within the safety zone while the bridge replacement 
project is ongoing.

IV. Discussion of the Rule

    This rule establishes a safety zone from February 25, 2019 through 
May 31, 2019. The safety zone will cover all navigable waters from 
surface to bottom within a 500-foot radius of the New York State 
Department of Transportation (NYSDOT) I-95 bridge structures to the 
north, and south, of the Unionport (Bruckner Expressway) Bridge, 
construction vessels, and machinery at mile 1.7 over Westchester Creek. 
Chartlets of the area are available in the docket. When enforced, no 
vessel or person will be permitted to enter the safety zone without 
obtaining permission from the COTP or a designated representative.
    The Coast Guard will notify the public and local mariners of this 
safety zone through appropriate means, which may include, but are not 
limited to, publication in the LNM or Broadcast Notice to Mariners via 
marine Channel 16 (VHF-FM) in advance of any enforcement.

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 
Westchester Creek, (2) the safety zone will only be enforced for 
approximately 96 hours during the float-in, erection, and installation 
of two temporary vertical lift spans by barge or if there is an 
emergency or other unforeseen circumstance, (3) persons or vessels 
desiring to enter the safety zone may do so with permission from the 
COTP or a designated representative. The Coast Guard will notify the 
public of the enforcement of this rule via appropriate means, such as 
via LNM or Broadcast Notice to Mariners via marine channel 16 (VHF-FM).

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 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

[[Page 49022]]

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 up to 96 hours that will prohibit entry within a 
500-foot radius of the New York State Department of Transportation 
(NYSDOT) I-95 bridge structures to the north, and south, of the 
Unionport (Bruckner Expressway) Bridge, construction vessels, and 
machinery at mile 1.7 over Westchester Creek. Channel openings may be 
requested by mariners before, or after, each work day when requested 
24-hours in advance by mariners. 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.T01-1060 to read as follows:


Sec.  165.T01-1060  Safety Zone, Unionport (Bruckner Expressway) 
Bridge, Westchester Creek, Bronx, NY.

    (a) Location. The following area is a safety zone: all waters of 
Westchester Creek at mile 1.7, from surface to bottom, within a 500-
foot radius of the New York State Department of Transportation (NYSDOT) 
I-95 bridge structures to the north, and south, of the Unionport 
(Bruckner Expressway) Bridge, construction vessels, and machinery.
    (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 
Northern New England (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.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
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 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 rule will be effective on 
February 25, 2019, through May 1, 2019, but will only be enforced 
during the float-in, erection, and installation of two temporary 
vertical lift spans by barge.
    (2) Notice of suspension of enforcement. 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 this regulation may be reported to the COTP at 
(718) 354-4353 or on VHF-Channel 16.

    Dated: July 26, 2019.
J.P. Tama,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2019-19990 Filed 9-17-19; 8:45 am]
 BILLING CODE 9110-04-P