[Federal Register Volume 85, Number 212 (Monday, November 2, 2020)]
[Rules and Regulations]
[Pages 69172-69175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24020]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2020-0600]
RIN 1625-AA00


Safety Zone; East River, 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 of the east channel of the East River between the 
Roosevelt Island Bridge (mile 6.4) and Gibbs Point approximately 800 
yards northeast of the bridge. The safety zone is needed to protect 
personnel, vessels, and the marine environment from potential hazards 
created by the installation of one TriFrame with three attached 
underwater turbines, associated cabling and 4 to 6 Private Aids to 
Navigation. When enforced, entry of vessels or persons into this zone 
is prohibited unless specifically authorized by the Captain of the Port 
New York.

DATES: This rule is effective without actual notice from November 2, 
2020 through 11:59 p.m., December 31, 2020. For the purposes of 
enforcement, actual notice will be used from 7 a.m., October 22, 2020 
through November 2, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2020-0600 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, 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
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PATON Private Aids to Navigation
RITE Roosevelt Island Tidal Energy Project
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 the contractor did not provide enough 
notice that three barges, three tugs and three work vessels will be 
conducting heavy lift operations and installing 4 to

[[Page 69173]]

6 Private Aids to Navigation (PATON) in the east channel of the East 
River, north of the Roosevelt Island Bridge while installing one 
TriFrame with three underwater turbines for the RITE Project. The USACE 
is issuing a permit for this installation and immediate action is 
needed to respond to the potential safety hazards associated with heavy 
lift operations. It is impracticable to publish an NPRM because we must 
establish this safety zone by October 22, 2020. The Coast Guard is 
publishing this rule to be effective through December 31, 2020 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 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 multiple 
construction vessels operating within a confined area of the East 
River.

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 
installation of the RITE Project TriFrame with three turbines and 
associated PATON marking this installation on October 22, 2020, will be 
a safety concern for anyone in the East River, east of Roosevelt 
Island, between the Roosevelt Island Bridge (mile 6.4) and Gibbs Point. 
This rule is needed to protect personnel, vessels, and the marine 
environment in the navigable waters within the safety zone while nine 
tugs, barges and work vessels are installing one TriFrame with three 
underwater turbines and 4-6 PATON marking the RITE Project area.

IV. Discussion of the Rule

    This rule establishes a safety zone from October 22 through 
December 31, 2020. The safety zone will cover all navigable waters of 
the East River east of Roosevelt Island between the Roosevelt Island 
Bridge (mile 6.4) and Gibbs Point being used by vessels and personnel 
to install Phase 1 of the RITE Project.
[GRAPHIC] [TIFF OMITTED] TR02NO20.003

    We anticipate enforcing the safety zone during the heavy lift 
operations for installation of the RITE Project TriFrame with three 
turbines scheduled from approximately 7 a.m. until 11 p.m. on October 
22, 2020. The duration of the zone is intended to protect personnel, 
vessels, and the marine environment in these constrained navigable 
waters while the project and PATON marking the project area are being 
installed. 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 is publishing this rule to 
be effective through December 31, 2020 in case the project is delayed 
due to unforeseen circumstances.

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 size, 
location, duration, and time-of-year of the safety zone. Vessel traffic 
will be able to safely transit around this safety zone which would 
impact a small designated area of

[[Page 69174]]

the East River for approximately 16 hours during the Fall when vessel 
traffic is normally low. Moreover, the Coast Guard would issue a 
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the 
zone, publish the zone 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.

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, 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 a 
safety zone lasting only 16 hours that will prohibit entry between the 
Roosevelt Island Bridge (mile 6.4) and Gibbs Point being used by 
vessels, machinery and personnel to install Phase 1 of the RITE Project 
and 4-6 PATON marking the project area. 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. 1. A Record of Environmental 
Consideration supporting this determination is available in the docket. 
For instructions on locating the docket, see the ADDRESSES section of 
this preamble.

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 record 
keeping 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.T01-0600 to read as follows:


Sec.  165.T01-0600  Safety Zone; East River, New York, NY.

    (a) Location. The following area is a safety zone: All waters of 
the East River, from surface to bottom, east of Roosevelt Island, 
upstream of the Roosevelt Island Bridge (mile 6.4) and downstream of a 
line connecting the following points: Gibbs Point at (pa) 
40[deg]46'05.12'' N, 073[deg]56'21.74'' W to Roosevelt Island at (pa) 
40[deg]46'09.25'' N, 073[deg]56'29.60'' W. These coordinates are based 
on NAD 83.
    (b) Definitions. As used in this section, designated representative 
means a Coast Guard Patrol Commander, including a Coast Guard coxswain, 
petty officer, or other officer operating a Coast Guard vessel and a 
Federal, State, and local officer designated by or assisting the 
Captain of the Port New York (COTP) in the enforcement of the safety 
zone.
    (c) Regulations. (1) Under the general safety zone regulations in 
subpart C of this part, you may not enter the safety zone described in 
paragraph (a) of this section unless authorized by the COTP or the 
COTP's designated representative.
    (2) To seek permission to enter, contact the COTP or the COTP's 
representative by VHF-Channel 16 or at

[[Page 69175]]

718-354-4353. Those in the safety zone must comply with all lawful 
orders or directions given to them by the COTP or the COTP's designated 
representative.
    (d) Enforcement period[s]. This section is effective from October 
22 through December 31, 2020 but will only be enforced when Roosevelt 
Island Tidal Energy Project heavy lift operations are in progress.

    Dated: October 20, 2020.
Jason P. Tama,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2020-24020 Filed 10-30-20; 8:45 am]
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