[Federal Register Volume 85, Number 2 (Friday, January 3, 2020)]
[Rules and Regulations]
[Pages 218-222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28115]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2019-0970]
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 final rule.

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SUMMARY: The Coast Guard is establishing two temporary regulated 
navigation areas and a safety zone for the navigable waters of the 
Hudson River, NY, surrounding the Tappan Zee Bridge from January 1, 
2020 through July 1, 2020. This rule will prohibit all persons and 
vessel traffic from the safety zone and enforce speed and wake 
restrictions for the Eastern and Western regulated navigation areas 
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: This rule is effective without actual notice from January 3, 
2020 through July 1, 2020. For the purposes of enforcement, actual 
notice will be used from January 1, 2020 through January 3, 2020.
    Comments and related material must be received by the Coast Guard 
during the effective period on or before April 1, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2019-0970 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-2019-0970 using the Federal 
eRulemaking Portal at http://www.regulations.gov. See the ``Public

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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
TFR Temporary Final 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 final 
rule (TFR) 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.
    On December 21, 2018, the Coast Guard published (83 FR 65521) which 
extended the effective period of the rule for one year until December 
31, 2019, due to delays of the Tappan Zee Bridge replacement project.
    On December 20, 2019, the NYSTA requested the RNAs and safety zone 
be extended through June 2020, to complete all remaining contract 
operations in and over the Hudson River.
    The Coast Guard is issuing this temporary final 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 construction 
operations 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. 
Additionally, construction barges and mooring balls still remain in the 
area. 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 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 46 U.S.C. 
70034.
    The First District Commander has determined that potential hazards 
exist associated with this bridge construction project that has already 
commenced, and will continue through July 1, 2020, 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 final work projects to complete 
the new bridge, it is necessary to control vessel movement through the 
area. The purpose of this TFR is to ensure the safety of waterway 
users, the public, and construction workers for the duration of the 
bridge construction project. 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 establishes a temporary final rule for the navigable 
waters of the Hudson River, NY, surrounding the Tappan Zee Bridge until 
July 1, 2020. There are no other changes to the regulatory text of this 
rule as previously cited in 33 CFR Sec.  165.T01-0174. This rule will 
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

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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 2020, 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 final 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 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, Rev. 1, associated implementing instructions, 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 
extending the effective time for six months 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 Record of 
Environmental Consideration supporting this determination 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 final 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

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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 TFR 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: 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.T01-0970 to read as follows:


Sec.  165.T01-0970  Regulated Navigation Areas and Safety Zone Tappan 
Zee Bridge Construction Project, Hudson River; South Nyack and 
Tarrytown, NY.

    (a) Regulated Navigation Area Boundaries. The following are 
regulated navigation areas:
    (1) Western RNA: All waters bound by the following approximate 
positions: 41[deg]04'39.16'' N, 073[deg]55'00.68'' W on the western 
shoreline; thence to 41[deg]04'28.34'' N, 073[deg]54'47.18'' W; thence 
to 41[deg]04'11.28'' N, 073[deg]54'48.00'' W; thence to 
41[deg]03'57.26'' N, 073[deg]54'40.73'' W; thence to 41[deg]03'57.36'' 
N, 073[deg]54'47.38'' W; thence to 41[deg]03'58.66'' N, 
073[deg]54'56.14'' W; thence to 41[deg]04'03.00'' N, 073[deg]55'07.60'' 
W; thence to a point on the western shoreline at 41[deg]04'06.69'' N, 
073[deg]55'14.10'' W; thence northerly along the shoreline to the point 
of origin (NAD 83).
    (2) Eastern RNA: All waters bound by the following approximate 
positions: 41[deg]04'21.96'' N, 073[deg]52'03.25'' W on the eastern 
shoreline; thence to 41[deg]04'26.27'' N, 073[deg]52'19.82'' W; thence 
to 41[deg]04'26.53'' N, 073[deg]53'20.07'' W; thence to 
41[deg]03'56.92'' N, 073[deg]53'18.84'' W; thence to 41[deg]03'56.69'' 
N, 073[deg]52'24.75'' W; thence to a point on the eastern shoreline at 
41[deg]03'46.91'' N, 073[deg]52'05.89'' W; thence northerly along the 
shoreline to the point of origin (NAD 83).
    (b) Safety Zone Boundaries. The following is a Safety Zone: All 
waters bound by the following approximate positions: 41[deg]04'59.70'' 
N, 073[deg]54'45.54'' W; thence to 41[deg]05'00.18'' N, 
073[deg]53'21.48'' W; thence to 41[deg]03'09.24'' N, 073[deg]53'16.86'' 
W; thence to 41[deg]03'07.08'' N, 073[deg]54'14.70'' W; thence to 
41[deg]04'11.28'' N, 073[deg]54'48.00'' W; thence to the point of 
origin (NAD 83).
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.10, 165.11, and 165.13, 165.20 and 165.23 apply.
    (2) Any vessel transiting through the Western 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.
    (3) Any vessel transiting through the 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 or they are transiting to, or from, the special 
anchorage area codified in 33 CFR 110.60(c)(8) located on the eastern 
shoreline at Tarrytown, NY and within the boundaries of the RNA.
    (4) Entry and movement within the Eastern RNA or Western RNA is 
subject to a ``Slow-No Wake'' speed limit. All vessels may not produce 
a wake and may not attain speeds greater than five knots unless a 
higher minimum speed is necessary to maintain steerageway. All vessels 
must proceed through the Eastern RNA and Western RNA with caution and 
operate in such a manner as to produce no wake.
    (5) Entry into, anchoring, loitering, or movement within the Safety 
Zone is prohibited unless the vessel is working on the bridge 
construction operations or authorized by the Captain of the Port New 
York (COTP) or his designated representative.
    (6) All persons and vessels must comply with all orders and 
directions from the COTP or the COTP's designated representative. The 
``designated representative'' of the COTP is any Coast Guard 
commissioned, warrant or petty officer who has been designated by the 
COTP to act on the COTP's behalf. The designated representative may be 
on a Coast Guard vessel or New York State Police, Westchester County 
Police, Rockland County Police, or other designated craft; or may be on 
shore and will communicate with vessels via VHF-FM radio or loudhailer. 
Members of the Coast Guard Auxiliary may be present to inform vessel 
operators of this regulation.
    (7) 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.
    (8) For the purpose of this regulation, the Federal navigation 
channel, located in the Eastern RNA is marked by the red and green 
navigation lights on the existing Tappan Zee Bridge, and the New NY 
Bridge. As the project progresses, the Federal navigation channel will 
be intermittently closed, or partially restricted, to all vessel 
transits. While the Federal navigation channel is closed, vessels that 
can safely navigate outside the Federal navigation channel would still 
be able to transit through the Eastern RNA. These closures or partial 
restrictions are tentatively scheduled to take place between March 2015 
and October 2016. The COTP will cause 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, 
Broadcast Notice to Mariners and Local Notice to Mariners.
    (9) 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 will be enforced 24 hours 
a day from 11:59 p.m. on December 31, 2019 until 11:59 p.m. on July 1, 
2020.
    (1) Notice of suspension of enforcement: If enforcement is 
suspended, the COTP will cause 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 Local Notice to Mariners. Such 
notification will include the date and time that enforcement will be 
suspended as well as the 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: December 23, 2019.
A.J. Tiongson,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2019-28115 Filed 1-2-20; 8:45 am]
 BILLING CODE 9110-04-P