[Federal Register Volume 83, Number 141 (Monday, July 23, 2018)]
[Rules and Regulations]
[Pages 34770-34775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15711]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2018-0523]
RIN 1625-AA00; 1625-AA11


Regulated Navigation Area and Safety Zone, Harlem River and 
Hudson River, Manhattan, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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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 (617) 223-8351, email 
<a href="/cdn-cgi/l/email-protection#8ccffeede5eba2c8a2c0edfce5e9e6e7e3ccf9ffefeba2e1e5e0"><span class="__cf_email__" data-cfemail="367544575f511872187a57465f535c5d597643455551185b5f5a">[email protected]</span></a>. You may also call or email Mr. Jeff Yunker, 
Waterways Management Division, U.S. Coast Guard Sector New York, 
telephone (718) 354-4195, email <a href="/cdn-cgi/l/email-protection#652f0003034b284b3c100b0e001725101606024b080c09"><span class="__cf_email__" data-cfemail="307a5556561e7d1e69455e5b554270454353571e5d595c">[email protected]</span></a>.

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
Sec.  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.

[[Page 34771]]

    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[deg]53'15.67'' N, 
073[deg]56'29.22'' W, thence to 40[deg]52'56.48'' N, 073[deg]55'21.57'' 
W, and all waters north of a line drawn from 40[deg]52'47.97'' N, 
073[deg]56'42.85'' W, thence to 40[deg]52'31.58'' N, 073[deg]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[deg]52'38.20'' N, 073[deg]55'36.70'' 
W, thence to 40[deg]52'39.96'' N, 073[deg]55'43.75'' W, thence to 
40[deg]52'46.34'' N, 073[deg]55'36.90'' W, thence to 40[deg]52'43.98'' 
N, 073[deg]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).

BILLING CODE 9110-04-P

[[Page 34772]]

[GRAPHIC] [TIFF OMITTED] TR23JY18.000

BILLING CODE 9110-04-C

    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

[[Page 34773]]

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

[[Page 34774]]

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

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, and 160.5; Department of Homeland Security Delegation No. 
0170.1.


0
2. Revise Sec.  165.T01-0523 to read as follows:


Sec.  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[deg]53'15.67'' N, 073[deg]56'29.22'' W, thence to 
40[deg]52'56.48'' N, 073[deg]55'21.57'' W, and all waters north of a 
line drawn from 40[deg]52'47.97'' N, 073[deg]56'42.85'' W, thence to 
40[deg]52'31.58'' N, 073[deg]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[deg]52'38.20'' 
N, 073[deg]55'36.70'' W, thence to 40[deg]52'39.96'' N, 
073[deg]55'43.75'' W, thence to 40[deg]52'46.34'' N, 073[deg]55'36.90'' 
W, thence to 40[deg]52'43.98'' N, 073[deg]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 (718) 354-4353 or on VHF-Channel 16.


[[Page 34775]]


    Dated: July 11, 2018.
A.J. Tiongson,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2018-15711 Filed 7-20-18; 8:45 am]
BILLING CODE 9110-04-P


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