2024-27429. Safety Zone; Hackensack River, Kearny and Secaucus, NJ

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Department of Homeland Security

Coast Guard

1. 33 CFR Part 165
2. [Docket Number USCG-2024-0404]
3. RIN 1625-AA00

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule and request for comments.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for certain waters of the Hackensack River. This action is necessary to provide for the safety of life on these navigable waters near the Portal Bridge during construction between November 2024 and December 2025. When enforced, entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port New York or a designated representative.

DATES:

Effective date: Effective November 21, 2024, through 11:59 p.m. on December 31, 2025.

Comments due date: Comments and related material must be received by the Coast Guard on or before February 19, 2025.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2024-0404 in the search box and click “Search.” Next, in the Document Type column, select “Supporting & Related Material.”

FOR FURTHER INFORMATION CONTACT:

If you have questions about this rule, call or email Jeffrey Yunker, Waterways Management Division, U.S. Coast Guard ( print page 92035) Sector New York; telephone [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

APA Administrative Procedure Act

CFR Code of Federal Regulations

COTP Captain of the Port New York

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

PNB Portal North Bridge

RNA Regulated Navigation Area

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

In partnership with New Jersey Transit, Amtrak plans to replace the Amtrak Portal Bridge across the Hackensack River, mile 5.0, at Little Snake Hill, New Jersey. On April 2, 2024, Skanska Traylor Portal North Bridge (PNB) Joint Venture notified the Coast Guard that it is requesting three 14-day periods of waterway closures on the Hackensack River to install three new bridge spans for the replacement Portal North Bridge. The purpose of the requested 14-day period is to position and secure a 400-foot-long bridge span over the waterway. The bridge span will be set on temporary shoring north of the existing bridge and a 100-foot-wide crane barge will then lift the bridge span from the temporary shoring using anchor lines and tugboats. The crane barge will move into the new bridge alignment position using anchor lines and tugboats, jack the new bridge span, set the new span onto the temporary supports, and slide the bridge span into the final position. Once the bridge span is set, the crane barge, support barges, and anchor lines will be removed out of the channel to prepare for the subsequent bridge span erection. This procedure will occur three times during separate 14-day periods of time.

After determining that establishment of safety zones was necessary to provide for the safety of life, property, and the environment during the anticipated construction of the bridge, on August 1, 2024, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Hackensack River, Kearny and Secaucus, NJ (89 FR 62689). There we explained the basis for the NPRM and invited comments on our proposed regulatory action related to the heavy lift operations during this bridge construction project. During the comment period that ended September 3, 2024, we received two comments.

The NPRM proposed an effective date of November 15, 2024, for the safety zone. However, due to project delays we are making the effective date November 21, 2024.

Additionally, separate from this rulemaking, the contractor held a mariners meeting on September 18, 2024, after the comment period closed on September 3, 2024. The purpose of the meeting was to provide a more detailed presentation of the operations required to deliver the new bridge spans by barge, position the barge carrying the three individual bridge spans and the crane barge that will conduct the heavy lift operations to position the new bridge spans on the new bridge, and then remove the barges from the navigable channel. The two companies that submitted written comments to the NPRM were in attendance at the meeting and agreed that all vessel traffic must cease operations during the erection process of the three new bridge spans.

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 and contrary to public interest because prompt action is needed to respond to the potential safety hazards associated with three separate bridge span float-ins and heavy lift operations installing the spans at the new Portal Bridge North.

Although this regulation is published as an interim rule with prior notice and comment, continued public comment is nevertheless desirable to ensure that the safety zone is both workable and reasonable throughout its effective period. Accordingly, persons wishing to comment may do so by submitting written comments as set out under ADDRESSES in this preamble. Commenters should include their names and addresses, identify the docket number for the regulation, and give reasons for their comments. If the Coast Guard determines that changes to the temporary interim rule are necessary, we will publish a temporary final rule or other appropriate document.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under the authority in 46 U.S.C. 70034. The Captain of the Port New York (COTP) has determined that potential hazards associated with the heavy lift operations while installing three new bridge spans between November 2024 and February 2025 will be a safety concern for users of the waterway between the New Jersey Turnpike/I-95 Fixed Bridge (River Mile 5.3) and 150 feet south of the existing Portal Bridge (River Mile 5.0). The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone in light of these hazards before, during, and after the heavy lift operations.

IV. Discussion of Comments, Changes, and the Rule

As noted above, we received two comments on our NPRM published August 1, 2024. We provide a detailed discussion below in response to each comment in turn.

We received one comment from Vinik Marine Services, LLC dated September 3, 2024. The comment letter included the following three specific concerns:

1. Lack of Transparency: The commenter stated that the NPRM is misleading because it does not address the horizontal clearance reduction of the existing bridge from 91.5 feet to 52.5 feet because the existing swing bridge will not have the capability to fully open due to the location of the new bridge.

Coast Guard Response: The commenter's concern regarding the horizontal clearance is outside the scope of this rulemaking regarding the establishment of a safety zone. The reduction in the horizontal clearance of the existing bridge is addressed in a separate rulemaking by the First Coast Guard District Bridge Program under Docket number USCG-2024-0412 published on October 3, 2024, in the Federal Register (89 FR 80436). In that case, the proposed regulation would modify the existing bridge operation regulations under 33 CFR 117, whereas this rulemaking project is for the blockage of the Hackensack River in vicinity of the existing Portal Bridge, which necessitates creation of a safety zone under 33 CFR 165. While both actions are related to the construction of the new Portal Bridge, they are two distinct regulatory actions with different impacts on the public. Comments for this rulemaking and related material were due to the Coast Guard before the conclusion of the comment period on November 4, 2024. The Coast Guard anticipates that the proposed rule for the bridge operation regulation (USCG-2024-0412) will be effective on or about February 1, 2025.

2. Financial Impact on Hackensack River Small Business Marine Contractors: The commenter stated the proposed river closures could significantly strain the Hackensack River marine contractors potentially leading to employee layoffs and a significant drop in revenue. Additionally, the difficulty in serving customers effectively could lead to losing business to other transportation modes like trucking, damage business reputation, and create an inability to ( print page 92036) fulfill contractual obligations with government agencies. Finally, the commenter stated that Coast Guard provided no basis for the assertion that this rulemaking would not impact small businesses.

Coast Guard Response: During a mariners meeting held on September 18, 2024, by Skanska Traylor Portal North Bridge (PNB) Joint Venture, which was not part of this rulemaking project, all attendees, including Vinik Marine and Spectraserv, agreed that all vessel traffic must cease operations during the erection process of the three new bridge spans due to the presented hazards. Closing the waterway via a safety zone during these hazardous operations is necessary to ensure safety of waterway users, specifically the construction barge workers. While we acknowledge some financial impact may occur because of this safety zone, the need to ensure safety of human life is paramount. Planning efforts by Skanska Traylor Joint Venture have reduced the potential financial impact while maximizing safety. Specifically, the Skanska Traylor Joint Venture has requested three 14-day waterway closures during heavy lift operations to accommodate any possible weather or schedule delays. After setting the first bridge span, Skanska Traylor stated that they will reevaluate whether the 14-day period can be modified to resume marine traffic and minimize impacts to waterway users. Therefore, while some financial impact may occur as asserted by the commenter, the Coast Guard determines the impact to not be significant due to the limited duration the safety zone will be enforced and opportunity for further reduction in the enforcement period after reevaluation by Skanska Taylor.

3. Overall Impact: The commenter stated the COTP has mischaracterized this action as a safety zone when it is attempting to implement a “Regulated Navigation Area” (RNA) under 33 CFR 165 and the COTP does not have the legal authority to do that. The commenter further stated that establishing an RNA would allow the District Commander to balance the needs of vessel owners and operators with that of the construction project company and the bridge owner—something the COTP has not done. The commenter stated this is a fundamental failure by the COTP to follow the Administrative Procedures Act (APA) and exemplified the lack of transparency and accountability regarding how this construction is being carried out and the lack of notice to and involvement of the maritime industry.

Coast Guard Response: Having found the hazards presented during heavy lift operations at the Portal Bridge and the need to ensure public safety, the COTP is acting within his authority and discretion to create and enforce a safety zone in this case. A safety zone limits access to the area and ensures that vessels maintain a safe distance from the construction site, significantly minimizing risk. An RNA on the other hand, is intended to be responsive to areas of high vessel congestion or ongoing construction and is unable to ensure the same level of access control and safety for waterway users. The commenter's claims that the COTP is not adhering to the APA due to lack of notice and participation by the maritime industry are inaccurate. The Coast Guard published an NPRM for this safety zone, which provided the public with 33 days during which to submit public comments. Additionally, this temporary interim rulemaking continues its commitment to providing sufficient notice and opportunity for public comment.

We received a second comment from Spectraserv Inc stating they do not object to the proposed three 14-day window closures on the Hackensack River to install the three new bridge spans. However, Spectraserv did object to all unscheduled closures or hindrances to navigation created by the contractor's repeated inability or unwillingness to shift the construction equipment clear of the channel for scheduled routine transits. This comment is outside the scope of this rulemaking to establish a safety zone.

After considering the comments discussed above, the Coast Guard determined that no changes should be made to the regulatory text of this rule from the proposed language in the NPRM other than to highlight how we will make notice of enforcement periods and to delay the effective period starting date until November 21, 2024, because of project delays. As written, the Coast Guard believes that the rule ensures consistency, sufficient notice, and improved safety while minimizing impact on vessel transits.

As noted in our NPRM, the original waterway closure dates were scheduled to begin on November 15, 2024, December 10, 2024, and January 13, 2025. On October 7, 2024, the bridge owner's representative notified the Coast Guard that two hurricanes in the Gulf of Mexico have delayed the heavy lift barge fit-out and delivery by nine days. This barge is being used to deliver the three new bridge spans to the project work site on the Hackensack River. The bridge owner's representative stated any impacts to the second bridge span delivery schedule have not yet been determined.

The first of three 14-day windows of full waterway closures has been delayed and is now anticipated to begin November 21, 2024, through December 4, 2024. For this reason, we are changing the effective dates in the regulatory text of this rule from the proposed rule in the NPRM. The anticipated dates for the second and third, 14-day windows of full waterway closures remain December 10, 2024, through December 23, 2024, and January 13, 2025, through January 26, 2025. The Coast Guard will make notice of each enforcement period of the safety zone via the Local Notice to Mariners and issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) as soon as practicable. In addition, as discussed in the NPRM, the rule will remain effective through December 31, 2025, in case the project is delayed due to unforeseen circumstances. If the project is completed before December 31, 2025, enforcement of the safety zone will be suspended, and notice given via Local Notice to Mariners. The First Coast Guard District Local Notice to Mariners can be found at: http://www.navcen.uscg.gov. Additionally, a 90-day comment period will run concurrently with this temporary interim rule to ensure that the regulation is both workable and reasonable. The safety zone will only be enforced during periods when heavy lift operations at the new bridge are in progress. All dates are tentative and subject to change due to weather, supply chain delays, or other unforeseen circumstances as noted above caused by two previous hurricanes in the Gulf of Mexico.

If the Coast Guard determines that changes to the temporary interim rule are necessary, we will publish a temporary final rule or other appropriate document to address these changes.

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. This rule has not been designated a ( print page 92037) “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, duration and time of year of the safety zone. The bridge owner and contractor are coordinating the full waterway closures with the upstream Bergen County Utilities Authority who may transport treated sewage sludge via tug and barge or overland trucks. The safety zone is only in effect on the navigable waters of the Hackensack River between the New Jersey Turnpike/I-95 Fixed Bridge (River Mile 5.3) and 150 feet south of the existing Portal Bridge (River Mile 5.0) and for a limited duration of 14-day periods to accommodate any delays or inclement weather. Further, Skanska Traylor stated that they will reevaluate whether modification of these periods is possible to resume marine traffic and minimize impacts to waterway users. The Coast Guard will notify the public of the enforcement of this rule through appropriate means, which may include, but are not limited to, publication in the Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16.

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 area in which the safety zone will be established 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 from the New Jersey Turnpike/I-95 Fixed Bridge (River Mile 5.3) and 150 feet south of the existing Portal Bridge (River Mile 5.0) on the Hackensack River. 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 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

1. The authority citation for part 165 continues to read as follows:

Authority: 46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.

2. Add § 165.T01-0404 to read as follows:

( print page 92038)

§ 165.T01-0404

Safety Zone; Hackensack River, Kearny and Secaucus, NJ.

(a) Location. The following area is a safety zone: All the navigable waters of the Hackensack River between the New Jersey Turnpike/I-95 Fixed Bridge (River Mile 5.3) and 150 feet south of the existing Portal Bridge (River Mile 5.0).

(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 via VHF Channel 16 or by phone at [phone] (Sector New York Command Center). 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. This section is effective from November 21, 2024, through December 31, 2025, but will only be enforced during periods when heavy lift operations at the new bridge are in progress. The Coast Guard will make notice of this safety zone via the Local Notice to Mariners and issue a Broadcast Notice to Mariners via marine channel 16 (VHF-FM) as soon as practicable. In addition, if the project is completed before December 31, 2025, enforcement of the safety zone will be suspended, and notice given via Local Notice to Mariners.

Jonathan A. Andrechik,

Captain, U.S. Coast Guard, Captain of the Port Sector New York.