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Safety Zone; Kosciuszko Bridge Construction, Newtown Creek, Brooklyn and Queens, NY

American Government Special Collections Reference Desk

American Government

Safety Zone; Kosciuszko Bridge Construction, Newtown Creek, Brooklyn and Queens, NY

Michael H. Day
Department of Homeland Security
20 June 2017


[Federal Register Volume 82, Number 117 (Tuesday, June 20, 2017)]
[Rules and Regulations]
[Pages 28007-28009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12855]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-1048]
RIN 1625-AA00


Safety Zone; Kosciuszko Bridge Construction, Newtown Creek, 
Brooklyn and Queens, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing two safety zones on the 
navigable waters of Newtown Creek, NY. The first safety zone is within 
500 feet of the two barges and assist vessels to be used for the 
removal and loading of the existing center span from the Kosciuszko 
Bridge at mile 2.1. The second is from approximately 370 yards south 
(upstream) of the Kosciuszko Bridge at mile 2.1 and Newtown Creek's 
confluence with the East River at mile 0.0 during transport of the 
existing center span to an offsite location. This action is necessary 
to provide for the safety of life on these navigable waters during the 
lowering and securing of the existing bridge's center span onto two 
barges within the Federal navigation channel and during the barge's 
outbound transit through Newtown Creek to the East River, tentatively 
scheduled on June 21-22, 2017. This rulemaking prohibits persons and 
vessels from being in the safety zones unless authorized by the Captain 
of the Port New York or a designated representative.

DATES: This rule is effective from June 20, 2017 through December 31, 
2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-1048 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; telephone 718-354-4195, email jeff.m.yunker@uscg.mil.

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

COTP Captain of the Port New York
CFR Code of Federal Regulations
DHS Department of Homeland Security
FDNY New York City Fire Department
FR Federal Register
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

    The Coast Guard issued a Bridge Permit dated August 21, 2013 
approving the location and construction of the Kosciuszko Bridge across 
Newtown Creek, mile 2.1, between the Boroughs of Queens and Brooklyn, 
NY. On November 29, 2016, NYSDOT notified the Coast Guard that it will 
be lowering the existing center span from the Kosciuszko Bridge over 
Newtown Creek at mile 2.1 onto two barges within the Newtown Creek 
Federal navigation channel, securing the center span to the barges for 
transit, rotating the barges, and towing the barges through Newtown 
Creek to the East River for final upland disposal.
    In response, on February 22, 2017, the Coast Guard published a NPRM 
titled ``Safety Zone; Kosciuszko Bridge Construction, Newtown Creek, 
Brooklyn and Queens, NY'' (82 FR 11332). There we stated why we issued 
the NPRM, and invited comments on our proposed regulatory action 
related to this bridge project. During the comment period that ended 
March 24, 2017, we received no comments.
    On May 1, 2017, the contractor provided June 21-22 as the expected 
primary dates for the removal and loading of the existing center span 
onto two barges. The contractor has informed the Coast Guard that the 
backup dates for the removal and transport of the existing center are 
June 28-29 and July 5-6, 2017.
    The Coast Guard is making this temporary rule effective less than 
30 days after publication in the Federal Register pursuant to authority 
under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 
553(d)). This provision authorizes an agency to make a rule effective 
less than 30 days after publication for good cause. We are issuing this 
rule, and 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 because waiting 30 days would be 
impracticable and contrary to the public interest. It is impracticable 
and contrary to the public interest to provide a full 30-days notice 
because this rule must be effective on June 21-22, 2017 due to 
favorable tides on that day necessary for the barge transits. If this 
rule is not made effective by this date, then it would inhibit the 
Coast Guard's ability to perform its statutory mission to ensure the 
safety of the maritime public. Though we are not providing a full 30 
day notice period before the rule becomes effective, the Coast Guard 
did provide notice and opportunity to comment through the NPRM process.

III. 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 
these operations will be a safety concern for anyone within a 500-foot 
radius of the tugs and barges. The purpose of this rule is to ensure 
safety of vessels and the navigable waters within a 500-foot radius of 
the two barges and assist vessels when loading, securing, and 
transporting the center span of the Kosciuszko Bridge through Newtown 
Creek before, during, and after the operations.

IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received no comments on our NPRM published 
February 22, 2017. There are no changes to the regulatory text of this 
rule from the proposed rule in the NPRM.
    This rule establishes a safety zone from June 21 through December 
31, 2017. The safety zone will cover all navigable waters of Newtown 
Creek within 500 feet of the two barges and assist vessels to be used 
for the removal and loading of the existing center span from the 
Kosciuszko Bridge at mile 2.1,

[[Page 28008]]

within 500 feet of two barges and their assist vessels in Newtown Creek 
from approximately 370 yards south (upstream) of the existing 
Kosciuszko Bridge at mile 2.1 and Newtown Creek's confluence with the 
East River during transport of the existing center span to an offsite 
location. The duration of the zone is intended to ensure the safety of 
vessels and these navigable waters before, during, and after the 
loading, securing, rotating the two barges for transit tentatively 
scheduled on June 21, 2017, and transporting the center span of the 
Kosciuszko Bridge through Newtown Creek tentatively scheduled on June 
22, 2017. Backup dates for these operations are June 28-29 and July 5-
6, 2017.

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 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. 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.
    This regulatory action determination is based on the size, 
location, and duration of the safety zones. Although vessel traffic 
will not be able to transit around these safety zones as the two barges 
carrying the Kosciuszko Bridge center span will block a minimum of 109 
feet of the 130 foot wide Federal navigation channel, enforcement of 
the safety will be limited in duration. It is anticipated the entire 
operation of loading the Kosciuszko Bridge center span, securing the 
span on the barges, rotating the barges, and towing through Newtown 
Creek should last no longer than 48 hours. During the lowering and 
securing of the center span and the approximate one-hour transit time 
from the bridge site to the East River vessels will not be able to meet 
or overtake the two barges with three assist tugs as the combined width 
of these vessels will be 109 feet and the Federal navigation channel is 
only 130 feet wide. However, the known waterway users upstream of the 
bridge including the New York City Department of Environmental 
Protection, U.S. Concrete, Bayside Fuel Oil Depot, and the U.S. 
Environmental Protection Agency all reported the requested 48-hour 
channel closure will not negatively impact their operations. U.S. 
Concrete stated they require at least two weeks' notice if the closure 
is anticipated to last longer than 48 hours. Facilities downstream of 
the bridge will not be required to move vessels moored at their 
facility as long as they do not extend into the Federal navigation 
channel and would be able to depart the facility before, or after, the 
two barges carrying the bridge span are towed past the facility. 
Moreover, the Coast Guard will issue a Local Notice to Mariners and a 
Broadcast Notice to Mariners via VHF-FM marine channel 16 about the 
zones.

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 received no comments from the Small Business 
Administration on this rulemaking. 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 zones 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.

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 
Management Directive 023-01 and

[[Page 28009]]

Commandant Instruction M16475.lD, 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 stationary safety 
zone lasting approximately 48 hours, a moving safety zone lasting 
approximately one hour that will prohibit transit within 500 feet of 
the two barges and assist vessels carrying the bridge span, and a 
stationary safety zone lasting approximately three hours that will 
prohibit transit within 600 feet of the existing bridge during 
explosives demolition operations at each onshore approach span. It is 
categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. A Record of Environmental 
Consideration (REC) 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 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.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping requirements, Security measures, and 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, 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Add Sec.  165.T01-1048 to read as follows:


Sec.  165.T01-1048  Safety Zone; Kosciuszko Bridge Construction, 
Newtown Creek, Brooklyn and Queens, NY.

    (a) Location. (1) The following area is a safety zone: All waters 
from surface to bottom of Newtown Creek within 500 feet of the two 
barges and assist vessels while lowering and securing the existing 
Kosciuszko Bridge center span at mile 2.1 to the two barges. This area 
is bound by the following approximate positions: northwest of a line 
drawn from 40[deg]43'34.9'' N., 073[deg]55'42.0'' W. to 
40[deg]43'36.8'' N., 073[deg]55'39.8'' W. (approximately 500 feet south 
(upstream) of the Kosciuszko Bridge at mile 2.1), and southeast of a 
line drawn from 40[deg]43'40.6'' N., 073[deg]55'52.8'' W. to 
40[deg]43'43.1'' N., 073[deg]55'49.9'' W. (approximately 500 feet 
downstream of the Kosciuszko Bridge at mile 2.1) (NAD 83).
    (2) The following area is a moving safety zone: All waters from 
surface to bottom of Newtown Creek within 500 feet of the two barges 
and assist vessels while transiting Newtown Creek between Latitude 
40[deg]43'30.0'' N. (approximately 370 yards south (upstream) of the 
Kosciuszko Bridge at mile 2.1), and east of a line drawn from the 
following approximate positions: 40[deg]44'17.1'' N., 073[deg]57'45.6'' 
W. to 40[deg]44'10.4'' N., 073[deg]57'45.6'' W. (at the confluence with 
the East River) (NAD 83).
    (b) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast Guard commissioned, warrant or petty officer of the U.S. 
Coast Guard who has been designated by the COTP to act on his or her 
behalf. A 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.
    (2) Official Patrol Vessels. Official patrol vessels may consist of 
any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement 
vessels assigned or approved by the COTP.
    (c) Enforcement Periods. (1) This safety zone is effective from 
June 21, 2017 to December 31, 2017 but will only be enforced when 
active center span lowering, securing, and towing operations are in 
progress.
    (2) The Coast Guard will rely on marine broadcasts and local notice 
to mariners to notify the public of the time and duration that the 
safety zone will be enforced. Violations of this safety zone may be 
reported to the COTP at 718-354-4353 or on VHF-Channel 16.
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.23, as well as the following regulations, apply.
    (2) During periods of enforcement, all persons and vessels must 
comply with all orders and directions from the COTP or a COTP's 
designated representative.
    (3) During periods of enforcement, upon being hailed by a U.S. 
Coast Guard vessel by siren, radio, flashing light, or other means, the 
operator of the vessel must proceed as directed.

    Dated: June 1, 2017.
Michael H. Day,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2017-12855 Filed 6-19-17; 8:45 am]
 BILLING CODE 9110-04-P

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