[Federal Register Volume 87, Number 108 (Monday, June 6, 2022)]
[Rules and Regulations]
[Pages 34173-34175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12058]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2022-0453]
RIN 1625-AA00


Safety Zone; Portal Bridge, Hackensack River, Kearny, NJ

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
navigable waters of the Hackensack River, within a 100-yard radius of 
the center of the Portal Bridge at mile 5.0 over the Hackensack River, 
Kearny, New Jersey, including the East and West navigational channels. 
The safety zone is needed to protect personnel, vessels, and the marine 
environment from potential hazards created by the cross channel repair 
work on the submarine cables. Entry of vessels or persons into this 
zone during the enforcement periods is prohibited unless specifically 
authorized by the Captain of the Port New York or a designated 
representative.

DATES: This rule is effective without actual notice from June 6, 2022 
through 11:59 p.m., September 2, 2022. For the purposes of enforcement, 
actual notice will be used from 7 a.m., June 1, 2022 until June 6, 
2022.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov, type USCG-
2022-0453 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 
proposed rulemaking, call or email MST1 Jaison Kurian, Waterways 
Management Division, U.S. Coast Guard, telephone 718-354-4000, email 
<a href="/cdn-cgi/l/email-protection#8cc6ede5ffe3e2a2c7f9fee5ede2ccf9ffefeba2e1e5e0"><span class="__cf_email__" data-cfemail="d892b9b1abb7b6f693adaab1b9b698adabbbbff6b5b1b4">[email protected]</span></a>

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

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
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On April 16, 2022, a barge being transported along the Hackensack 
River collided with the East Fender of the Portal Bridge, resulting in 
the East Fender being severely damaged, and rendering the East 
Navigation Channel closed to maritime traffic. During the subsequent 
site inspection it was discovered that a large portion of the fender 
debris became caught on an existing submarine cable. This existing 
submarine cable crosses both the East and West Navigation Channels and 
facilitates the rail-return path for a section of the NEC track 
circuit. Opening any portion of the Portal Bridge before repairs to the 
submarine cables are complete, could result in the Portal Bridge being 
inoperable for an extended length of time. The enforcement of the 
safety zone enables the submarine cable repairs are completed in a 
timely manner.

[[Page 34174]]

    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)). 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 Coast Guard was notified of the 
submarine cable repair operation with insufficient time to complete the 
NPRM process before the enforcement of the safety zone. It is 
impracticable to publish an NPRM because we must establish this safety 
zone by June 1, 2022, for this unscheduled critical repair work. 
Additionally, delaying the effective date of this rule would be 
contrary to the public interest as it is necessary to establish this 
safety zone to protect personnel and vessels from hazards associated 
with submarine cable repairs. The Coast Guard is publishing this rule 
to be effective through September 2, 2022 in case the project is 
delayed due to unforeseen circumstances.
    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 because immediate action is needed to 
respond to the potential safety hazards associated with the replacement 
of the submarine cable repairs on the Portal Bridge in Kearny, NJ.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 46 U.S.C. 
70034 (previously 33 U.S.C. 1231). The Captain of the Port New York 
(COTP) has determined that potential hazards associated with submarine 
cable replacement at Portal Bridge starting June 1, 2022. This rule is 
needed to protect personnel, vessels, and the marine environment in the 
navigable waters within the safety zone during the repairs to the 
submarine cables.

IV. Discussion of the Rule

    Although we only expect the repairs to take 36 hours, this rule 
establishes a safety zone from 7 a.m. on June 1, 2022 until 11:59 p.m. 
on September 2, 2022 in case the project is delayed due to unforeseen 
circumstances. The safety zone will cover all navigable waters of the 
Hackensack River, within a 100 yard radius of the Portal Bridge, 
Kearny, New Jersey, including the East and West channels. We anticipate 
enforcing the safety zone for a 36 hour period during cable replacement 
operations from approximately 7 a.m. on June 1, 2022, until 7 p.m. on 
June 2, 2022. Upon completion of the repairs, mariners will be notified 
by Broadcast Notice to Mariners. During periods of enforcement, the 
Portal Bridge will remain in the closed position and all vessels will 
be prohibited from transiting under the bridge. The duration of the 
zone is intended to protect personnel, vessels, and the marine 
environment in these navigable waters while the bridge is being 
repaired. No vessel or person will be permitted to enter the safety 
zone without obtaining permission from the COTP or a designated 
representative during the enforcement period. The Coast Guard is 
publishing this rule to be effective through September 2, 2022.
    The Coast Guard will notify the public and local mariners 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 marine Channel 16 (VHF-FM).

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.

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 ``significant 
regulatory action,'' under Executive Order 12866. 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-day of the safety zone. The safety zone 
is only in effect for navigable waters within a 100-yard radius of the 
center of the Portal Bridge at mile 5.0 over the Hackensack River, 
Kearny, New Jersey. 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 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 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

[[Page 34175]]

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 
establishing a safety zone on all navigable waters of the Hackensack 
River, within a 100-yard radius of the Portal Bridge, Kearny, New 
Jersey, including the East and West navigational channels. 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 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; 33 CFR 1.05-1, 6.04-1, 6.04-
6, and 160.5; Department of Homeland Security Delegation No. 
00170.1, Revision No. 01.2.


0
2. Add Sec.  165.T01-0453 to read as follows:


Sec.  165. T01-0453   Safety Zone; Portal Bridge, Hackensack River, 
Kearny, NJ.

    (a) Location. The following area is a safety zone: All navigable 
waters of the Hackensack River, within a 100-yard radius of the center 
of the Portal Bridge (mile 5.0), Kearny, New Jersey, including the East 
and West navigational channels.
    (b) Definitions. As used in this section, Designated Representative 
means a Coast Guard Officer, 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. Under the general safety zone regulations in 
subpart C of this part, no person or vessel may enter the safety zone 
described in paragraph (a) of this section unless authorized by the 
Captain of the Port (COTP) or the COTP's designated representative.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 June 1, 
2022, through September 2, 2022, but will only be enforced during 
periods when bridge repairs are in progress.

    Dated: May 31, 2022.
Z. Merchant,
Captain, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2022-12058 Filed 6-3-22; 8:45 am]
BILLING CODE 9110-04-P


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