2018-15711. Regulated Navigation Area and Safety Zone, Harlem River and Hudson River, Manhattan, NY

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is revising a previously established temporary regulated navigation area and safety zone for waters of the Harlem and Hudson Rivers in the vicinity of the Amtrak Spuyten Duyvil Railroad Bridge at mile 7.9 over the Harlem River. The regulated navigation area and safety zone protect personnel, vessels, and the marine environment from potential hazards created by the reinstallation of the swing span portion of the Spuyten Duyvil Railroad Bridge. During heavy lift operations vessels transiting the Hudson River must abide by the established speed restrictions to eliminate vessel wake. During heavy lift operations entry of vessels or persons into this safety zone is prohibited unless specifically authorized by the First District Commander or a designated representative.

DATES:

This rule is effective without actual notice from July 23, 2018 through September 30, 2018. For the purposes of enforcement, actual notice will be used from July 15, 2018 through July 23, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, type USCG-2018-0523 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 [phone], email [e-mail]. You may also call or email Mr. Jeff Yunker, Waterways Management Division, U.S. Coast Guard Sector New York, telephone [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

COTP Captain of the Port

DHS Department of Homeland Security

FR Federal Register

LNM Local Notice to Mariners

NPRM Notice of proposed rulemaking

RNA Regulated Navigation Area

§ Section

U.S.C. United States Code

II. Background Information and Regulatory History

On May 1, 2018, Amtrak sent the U.S. Coast Guard a letter describing work it would be conducting to remove and replace the moveable portion of the Spuyten Duyvil Railroad Bridge over the Harlem River at mile 7.9. On May 7, 2018, the U.S. Coast Guard District One Bridge Administration notified Amtrak, the bridge owner, that it had no objections to the proposed project.

From May 27 to September 29, 2018, Amtrak will be repairing the Spuyten Duyvil Railroad Bridge. This repair project consists of two phases, removal and reinstallation, of the swing span of the bridge. On June 22, 2018, the Coast Guard issued a temporary final rule establishing a regulated navigation area and safety zone that covered both of these phases, 83 FR 29007. On June 26, 2018 the Coast Guard received notification from the repair project contractor that the reinstallation of the swing span of the bridge is potentially delayed and will be conducted over a three-day period between July 15, 2018 and August 4, 2018. As a result the Coast Guard is revising this rule so that the regulated navigation area and safety zone covers the entire three week reinstallation phase that remains to be completed.

During the installation of the swing span a barge and support vessels will be staged near the bridge. The swing span will be lifted from a support barge by a heavy lift crane barge and installed. The preparation for and reinstallation of the swing span will take approximately 72 hours. Amtrak anticipates this work will be conducted over a three-day period between July 15, 2018 and August 4, 2018.

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)(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 schedule for the reinstallation of the swing span was only recently finalized and provided to the Coast Guard, and timely action is needed to respond to the potential safety hazards associated with this bridge project. The schedule for the repairs and notification to the Coast Guard was delayed by the late finalization of project details, including coordinating the heavy lift operations with the schedules of known waterway users, and writing a Maintenance of Waterway Traffic Plan. It is impracticable and contrary to the public interest to publish an NPRM because we must establish this RNA and safety zone by July 15, 2018, to allow for timely repairs to the bridge's swing span and promote the safety of the public.

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 the public interest because timely action is needed to respond to the potential safety hazards associated with repairs to the swing span of the bridge.

III. Legal Authority and Need for Rule

The First District Commander has determined that potential hazards associated with the bridge swing span reinstallation will be a safety concern for anyone within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge. The RNA and safety zone are needed to ensure the safety of personnel, vessels, and the marine environment from hazards associated with the replacement of Spuyten Duyvil Railroad Bridge. The Coast Guard anticipates that crane lifting operations may create the potential for falling debris into the waterway. The RNA is needed to limit vessel speed and wake of all vessels operating in the Hudson River in the vicinity to minimize the unexpected or uncontrolled movement of water. Construction operations utilizing a crane barge are sensitive to water movement, and wake from passing vessels could pose significant risk of injury or death to construction workers.

IV. Discussion of the Rule

This rule revises the RNA and safety zone previously established on June 22, 2018 at 83 FR 29007. On June 26, 2018 the Coast Guard received notification from the repair project contractor that the reinstallation of the swing span of the bridge is potentially delayed and will be conducted over a three-day period between July 15, 2018 and August 4, 2018. As a result the Coast Guard is revising this rule so that the regulated navigation area and safety zone covers the entire three week reinstallation phase that remains to be completed. The revised RNA and safety zone will be enforceable from 6 a.m. on Sunday, July 15, 2018, to 11:59 p.m. on Sunday, September 30, 2018.

The RNA covers all waters of the Hudson River, approximately 500 yards upstream, and downstream, of the Spuyten Duyvil Railroad Bridge from surface to bottom bound by the following approximate positions starting south of a line drawn from 40°53′15.67″ N, 073°56′29.22″ W, thence to 40°52′56.48″ N, 073°55′21.57″ W, and all waters north of a line drawn from 40°52′47.97″ N, 073°56′42.85″ W, thence to 40°52′31.58″ N, 073°55′45.06″ W (NAD 83), excluding the portion of the safety zone surrounding the Spuyten Duyvil Railroad Bridge as discussed in the following paragraph.

The safety zone covers all waters of the Hudson River and Harlem River within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge, from surface to bottom, bound by the following approximate positions starting on the Manhattan side of Spuyten Duyvil Railroad Bridge with position 40°52′38.20″ N, 073°55′36.70″ W, thence to 40°52′39.96″ N, 073°55′43.75″ W, thence to 40°52′46.34″ N, 073°55′36.90″ W, thence to 40°52′43.98″ N, 073°55′29.83″ W, thence along the Bronx shoreline to the Henry Hudson Bridge at mile 7.2 of the Harlem River, thence south across the Harlem River following along the Henry Hudson Bridge to the Manhattan side, thence along the Manhattan shoreline to the point of origin (NAD 83).

During operations involving the reinstallation of the swing span a safety zone will prohibit the transit of vessels in the Hudson River and Harlem River within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge. This safety zone will protect personnel, vessels, and the marine environment from potential hazards created by the Spuyten Duyvil Railroad Bridge swing span reinstallation project.

Additionally, during the reinstallation of the swing span all vessels transiting the Hudson River within the RNA will be required to follow a “Slow-No Wake” speed limit. When this RNA is enforced, no vessel may produce a wake nor attain speeds greater than five (5) knots unless a higher minimum speed is necessary to maintain bare steerageway. The heavy lift operations involving the reinstallation of the bridge swing span are currently scheduled to take place between July 15, 2018 and August 4, 2018. The Coast Guard is publishing this rule to be effective, and enforceable, through September 30, 2018, in case the project is delayed due to unforeseen circumstances.

We anticipate enforcing the RNA and safety zone during the heavy lift operation, occurring between approximately July 15, 2018 and August 4, 2018. The RNA and safety zone is expected to be enforced for approximately one 72-hour period when vessels are preparing for, and conducting, the swing span reinstallation operations. The duration of enforcement for the RNA and safety zone is intended to protect personnel, vessels, and the marine environment in these waters while the bridge span is being installed. During the enforcement period, all vessels and persons must obtain permission from the First District Commander or a designated representative before entering the safety zone.

The Coast Guard will notify the public and local mariners of this RNA and safety zone through the Local Notice to Mariners (LNM) and Broadcast Notice to Mariners via VHF-FM marine channel 16 in advance of any enforcement period. The regulatory text we are enforcing appears at the end of this document.

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 RNA and safety zone only impact a small designated area of the Harlem and Hudson Rivers; (2) the RNA and safety zone will only be enforced during heavy lift operations tentatively scheduled to occur between July 15, 2018 and August 4, 2018, for the swing span reinstallation; (3) persons or vessels may transit the RNA at any time, subject to a speed restriction during any periods of enforcement; (4) persons or vessels desiring to enter the safety zone may do so when the heavy lift operations are not in progress; (5) the Coast Guard previously published the approximate project dates in the LNM #18-2018 dated May 2, 2018, LNM #19-2018 dated May 9, 2018, LNM #20-2018 dated May 17, 2018, LNM #21-2018 dated May 23, 2018, LNM #22 dated May 30, 2018, and also requested impacted mariners to contact the contractor to discuss their schedules and receive email schedule updates; (6) the contractor contacted known waterway users to discuss the project and waterway impacts. Although the heavy lift operations will result in enforcement of a safety zone, closing the Harlem River in the vicinity of the Spuyten Duyvil Railroad Bridge, this operation is scheduled to accommodate sight-seeing vessels and marine events to the greatest extent possible.

The Coast Guard will also notify the public of the enforcement of this rule via appropriate means, such as the LNM and Broadcast Notice to Mariners.

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 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 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 the creation of an RNA and a safety zone, both of which are expected to be enforced for two periods each lasting approximately 72 hours. The RNA is will restrict the speed of vessels transiting the Hudson River within approximately 500 yards upstream and downstream of the Spuyten Duyvil Railroad Bridge while heavy lift operations are conducted. The safety zone will prohibit vessels on the Hudson and Harlem Rivers from coming within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge during heavy lift operations. 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

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.

2. Revise § 165.T01-0523 to read as follows:

§ 165.T01-0523

Regulated navigation area and safety zone; Harlem River and Hudson River, Manhattan, NY.

(a) Location—(1) Regulated navigation area. The following is a regulated navigation area: All waters of the Hudson River, approximately 500 yards upstream, and downstream, of the Spuyten Duyvil Railroad Bridge from surface to bottom starting south of a line drawn from 40°53′15.67″ N, 073°56′29.22″ W, thence to 40°52′56.48″ N, 073°55′21.57″ W, and all waters north of a line drawn from 40°52′47.97″ N, 073°56′42.85″ W, thence to 40°52′31.58″ N, 073°55′45.06″ W (NAD 83), excluding the portion of the safety zone surrounding the Spuyten Duyvil Railroad Bridge as described in paragraph (a)(2) of this section.

(2) Safety zone. The following is a safety zone: All waters of the Hudson River and Harlem River within approximately 300 yards of the center of the Spuyten Duyvil Railroad Bridge, from surface to bottom, bound by the following approximate positions starting on the Manhattan side of Spuyten Duyvil Railroad Bridge with position 40°52′38.20″ N, 073°55′36.70″ W, thence to 40°52′39.96″ N, 073°55′43.75″ W, thence to 40°52′46.34″ N, 073°55′36.90″ W, thence to 40°52′43.98″ N, 073°55′29.83″ W, thence along the Bronx shoreline to the Henry Hudson Bridge at mile 7.2 of the Harlem River, thence south across the Harlem River following along the Henry Hudson Bridge to the Manhattan side, thence along the Manhattan shoreline to the point of origin (NAD 83).

(b) Definitions. As used in this section, a designated representative of the First District Commander is any Coast Guard commissioned, warrant or petty officer who has been designated by the First District Commander to act on his or her behalf. A designated representative may be on a Coast Guard vessel, other designated craft, or on shore and communicating with vessels via VHF-FM radio, loudhailer, or by phone. Members of the Coast Guard Auxiliary may be present to inform vessel operators of the regulations in this section.

(c) Regulations—(1) Regulated navigation area. (i) The general regulations contained in 33 CFR 165.13 apply.

(ii) During periods of enforcement, entry and movement within the RNA is subject to a “Slow-No Wake” speed limit. No vessel may produce a wake nor attain speeds greater than five (5) knots unless a higher minimum speed is necessary to maintain bare steerageway.

(iii) During periods of enforcement, any vessel transiting within this RNA must comply with all directions given to them by the First District Commander or the First District Commander's designated representative.

(2) Safety zone. (i) The general regulations in 33 CFR 165.23 apply.

(ii) Entry into, anchoring, loitering, or movement within the safety zone is prohibited during any periods of enforcement, including preparations for the heavy lift operations, the heavy lift operations, and necessary follow-on actions. This prohibition does not apply to vessels authorized to be within the zone by the District Commander or the District Commander`s designated representative.

(iii) During periods of enforcement, any vessel or person transiting through the safety zone must comply with all orders and directions from the District Commander or the District Commander`s designated representative.

(d) Enforcement periods. This section is enforceable 24 hours a day from 6 a.m. on July 15, 2018 to 11:59 p.m. on September 30, 2018. This section will be enforced from 6 a.m. on July 15, 2018 to 11:59 p.m. on August 4, 2018, and at any other time during the effective period of this section when the COTP New York issues a notice of enforcement to be published in the Federal Register. In addition the COTP New York will provide notice by Broadcast Notice to Mariners, Local Notice to Mariners, or both, to announce whenever this section is subject to enforcement or whenever an announced enforcement period will be suspended. Violations of this section may be reported to the COTP New York at [phone] or on VHF-Channel 16.

Dated: July 11, 2018.

A.J. Tiongson,

Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.