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[Federal Register Volume 89, Number 225 (Thursday, November 21, 2024)]
[Rules and Regulations]
[Pages 92034-92038]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27429]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2024-0404]
RIN 1625-AA00

Safety Zone; Hackensack River, Kearny and Secaucus, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule and request for comments.

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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

[[Page 92035]]

Sector New York; telephone 718-354-4195, email 
[email protected].

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
Sec.  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

[[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

[[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

0
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.

0
2. Add Sec.  165.T01-0404 to read as follows:

[[Page 92038]]

Sec.  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 (718) 354-4353 (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.
[FR Doc. 2024-27429 Filed 11-19-24; 4:15 pm]
BILLING CODE 9110-04-P
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