[Federal Register Volume 80, Number 6 (Friday, January 9, 2015)]
[Proposed Rules]
[Pages 1382-1385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-00178]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2014-0002]
RIN 1625-AA11


Regulated Navigation Area, Kill Van Kull and Newark Bay; Bayonne, 
NJ, NY

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Coast Guard proposes to establish a 
permanent Regulated Navigation Area (RNA) on the navigable waters of 
Kill Van Kull and Newark Bay surrounding the Bayonne Bridge. In 
response to a planned Bayonne Bridge construction project, this 
proposed rule would establish a speed restriction in the waters 
surrounding the Bayonne Bridge. Also, this proposed rule would allow 
the Coast Guard to prohibit vessel traffic through the RNA when 
necessary to safeguard people and vessels from the hazards associated 
with bridge construction.

DATES: Comments and related material must be received by the Coast 
Guard on or before February 9, 2015.

ADDRESSES: You may submit comments identified by docket number using 
any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail or Delivery: Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries 
accepted between 9 a.m. and 5 p.m., Monday through Friday, except 
federal holidays. The telephone number is (202) 366-9329.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for further instructions 
on submitting comments. To avoid duplication, please use only one of 
these three methods.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Lieutenant Commander Myles Greenway, Waterways Management at First 
Coast Guard District at 617-223-8385 or email at 
<a href="/cdn-cgi/l/email-protection#612c180d04124f2b4f261304040f16001821141202064f0c080d"><span class="__cf_email__" data-cfemail="682511040d1b4622462f1a0d0d061f0911281d1b0b0f46050104">[email protected]</span></a>; or call LT Hannah Eko, Waterways Management 
Division at Sector New York at 718-354-4114, or email 
<a href="/cdn-cgi/l/email-protection#b2dad3dcdcd3da9cdd9cd7d9ddf2c7c1d1d59cdfdbde"><span class="__cf_email__" data-cfemail="f49c959a9a959cda9bda919f9bb481879793da999d98">[email protected]</span></a>. If you have questions on viewing or submitting 
material to the docket, call Cheryl Collins, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

COTP NY Captain of the Port New York
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
RNA Regulated Navigation Area

A. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online at 
http://www.regulations.gov, or by fax, mail, or hand delivery, but 
please use only one of these means. If you submit a comment online, it 
will be considered received by the Coast Guard when you successfully 
transmit the comment. If you fax, hand deliver, or mail your comment, 
it will be considered as having been received by the Coast Guard when 
it is received at the Docket Management Facility. We recommend that you 
include your name and a mailing address, an email address, or a 
telephone number in the body of your document so that we can contact 
you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number [USCG-2014-0002] in the ``SEARCH'' box and click 
``SEARCH.'' Click on ``Submit a Comment'' on the line associated with 
this rulemaking.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

2. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
type the docket number (USCG-2014-0002) in the ``SEARCH'' box and click 
``SEARCH.'' Click on Open Docket Folder on the line associated with 
this rulemaking. You may also visit the Docket Management Facility in 
Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

3. Privacy Act

    Anyone can search the electronic form of comments received into any 
of

[[Page 1383]]

our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one, using one of the methods specified under ADDRESSES. 
Please explain why you believe a public meeting would be beneficial. If 
we determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a later notice in the Federal Register.

B. Regulatory History and Information

    The Port Authority of New York and New Jersey (PANYNJ) have 
received approval to perform construction on the Bayonne Bridge, and 
the Coast Guard has published certain documents in the Federal Register 
related to the bridge construction permit. However, this proposed 
rulemaking is the first regulatory action that the Coast Guard has 
taken related to regulating vessel traffic along the affected waterway.
    There is insufficient time before the planned start of the 
construction project to accommodate the notice and comment process and 
have a thirty day period before the effective date of the regulation. 
The currently planned start of the construction and the associated 
regulated navigation area is February 1, 2015. This date is based on a 
number of factors, including weather and the availability of 
construction equipment and other resources, and would be difficult to 
change. However, the Coast Guard is taking several steps to mitigate 
the impact of this shortened period. First, the Coast Guard has reached 
out to waterway users to discuss the impact of this regulated 
navigation area. In addition, the Coast Guard has drafted a rule 
designed to have minimum impact on waterway traffic. Finally, if the 
planned construction date remains February 1, 2015, the Coast Guard 
intends to continue to receive comments in the first few months of the 
effective period of the regulated navigation area, and may change the 
regulation as a result of those comments. A good cause statement, if 
required, will be published as part of the final rule.

C. Basis and Purpose

    Under the Ports and Waterways Safety Act, the Coast Guard has the 
authority to establish Regulated Navigation Areas in defined water 
areas that are hazardous or in which hazardous conditions are 
determined to exist. See 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; and Department of Homeland Security 
Delegation No. 0170.1.
    The purpose of this proposed rulemaking is to ensure the safety of 
vessels and workers from hazards associated with construction on the 
Bayonne Bridge. The current Bayonne Bridge was built in 1931 and 
carries the NY/NJ Route 440. PANYNJ has contracted Skanska-Koch Inc. 
and Kiewit Infrastructure for this project.
    Construction operations are sensitive to water movement, and wake 
from passing vessels could pose significant risk of injury or death to 
construction workers. In order to minimize such unexpected or 
uncontrolled movement of water, the RNA will limit vessel speed and 
wake of all vessels operating in the vicinity of the bridge 
construction zone. This will be achieved by implementing a five (5) 
knot speed limit and ``NO WAKE'' zone in the vicinity of the 
construction as well as providing a means to suspend all vessel traffic 
for emergent situations that pose imminent threat to waterway users in 
the area.
    After consulting with PANYNJ, Skanska-Koch Inc, and Kiewit 
Infrastructure, the Coast Guard has determined that certain aspects of 
the construction project can only be completed in the channel and will 
require closing the waterway. For instance, barges are expected to be 
used at times while portions of the bridge are being raised and the 
barges' presence might limit maneuverability in the waterway. Also, the 
Coast Guard anticipates that crane and cutting operations may create 
the potential for falling debris into the waterway. It is expected that 
the construction efforts that might require waterway closures will not 
take place until the fall of 2015.

D. Discussion of Proposed Rule

    To address the aforementioned hazards, this proposed rule would 
establish speed and wake restrictions in the vicinity of the Bayonne 
Bridge. Also, this proposed rule would establish intermittent closures 
of the waterway along portions of Kill Van Kull and Newark Bay when 
necessary for the safety of vessels and workers during construction 
work in the channel. This proposed regulation will be effective at 8:00 
a.m. on February 1, 2015. The proposed speed restrictions of five (5) 
knots will be in effect at all times within the RNA and all vessels 
must proceed through the area with caution and operate in such a manner 
as to produce no wake unless a higher minimum speed is necessary to 
maintain bare steerage. The Coast Guard will enforce waterway closures, 
however, only when necessary to protect people and vessels from hazards 
associated with bridge construction.
    Whenever it is determined that a waterway closure is necessary, the 
Coast Guard will provide the public with as much advanced notice as 
possible of the closure times. Such notice will be provided via http://homeport.uscg.mil/newyorkvia, via Local Notice to Mariners, via 
Broadcast Notice to Mariners, and via other methods described in 33 CFR 
165.7.

E. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to the rulemaking. Below we summarize our 
analyses based on these statutes and executive orders.

1. Regulatory Planning and Review

    This proposed rule is not a significant regulatory action under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
as supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.
    The Coast Guard expects the economic impact of this proposed rule 
to be minimal as this proposed RNA will not necessarily prohibit vessel 
traffic in the affected waterways. Rather, this proposed RNA will 
primarily establish a speed and wake restriction along the waters 
surrounding the Bayonne Bridge. There may be times that the Coast Guard 
will prohibit vessel traffic through the RNA, but such closures are 
expected to take place during off peak hours. Moreover, even when the 
Coast Guard generally prohibits vessel traffic through the RNA, 
specific vessels may still obtain permission to transit through the 
RNA. Additionally, the Coast Guard will provide the public with 
advanced notification of waterway closures so that mariners may plan 
accordingly. Such notifications will be made through various means, 
including, but not limited to, Local Notice to Mariners and at http://homeport.uscg.mil/newyork. For all of these reasons, the Coast Guard 
has determined that this proposed

[[Page 1384]]

rulemaking would not be a significant regulatory action.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 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. For all of the reasons discussed in the REGULATORY PLANNING AND 
REVIEW section, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this proposed rule will not have a significant economic impact on a 
substantial number of small entities.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

3. Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed 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, above. The Coast Guard will not retaliate against small 
entities that question or complain about this proposed rule or any 
policy or action of the Coast Guard.

4. Collection of Information

    This proposed rule will not call for a new collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520.).

5. Federalism

    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 proposed rule under that Order and 
determined that this rule does not have implications for federalism.

6. 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.

7. 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

8. Taking of Private Property

    This proposed rule would not cause a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

9. Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

10. Protection of Children From Environmental Health Risks

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

11. Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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.

12. Energy Effects

    This proposed rule is not a ``significant energy action'' under 
Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 and Commandant Instruction 
M16475.lD, which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination 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 proposed rule 
involves the establishment of a Regulated Navigation Area and thus, is 
categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. A preliminary environmental 
analysis checklist supporting this determination and a Categorical 
Exclusion Determination will be available in the docket where indicated 
under ADDRESSES. We seek any comments or information that may lead to 
the discovery of a significant environmental impact from this proposed 
rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping requirements, Security measures and Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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; 46 U.S.C. Chapter 701, 3306, 3703; 50 
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.168 to read as follows:


Sec.  165.168  Regulated Navigation Area; Kill Van Kull and Newark Bay; 
Bayonne, NJ, NY Regulated Area.

    (a) Location. The following area is a Regulated Navigation Area 
(RNA): all

[[Page 1385]]

waters of Bergen Point East and West Reaches in the Kill Van Kull, and 
all waters of Newark Bay South Reach, bound by the following 
approximate positions: 40[deg]38'51.93'' N, 074[deg]06'47.90'' W; 
thence to 40[deg]38'41.53'' N, 074[deg]07'18.54'' W; thence to 
40[deg]38'38.20'' N, 074[deg]07'41.30'' W; thence to 40[deg]38'40.47'' 
N, 074[deg]08'01.61'' W; thence to 40[deg]38'34.20'' N, 
074[deg]08'41.71'' W; thence to 40[deg]38'39.67'' N, 074[deg]08'51.86'' 
W; thence to 40[deg]38'50.20'' N, 074[deg]08'55.19'' W; thence to 
40[deg]39'17.54'' N, 074[deg]08'38.20'' W; thence to 40[deg]39'19.00'' 
N, 074[deg]08'53.09'' W; thence to 40[deg]39'07.94'' N, 
074[deg]08'59.04'' W; thence to 40[deg]38'46.87'' N, 074[deg]09'23.03'' 
W; thence to 40[deg]38'33.40'' N, 074[deg]09'19.87'' W; thence to 
40[deg]38'24.86'' N, 074[deg]09'02.71'' W; thence to 40[deg]38'23.93'' 
N, 074[deg]08'52.56'' W; thence to 40[deg]38'31.40'' N, 
074[deg]08'07.56'' W; thence to 40[deg]38'31.80'' N, 074[deg]07'55.66'' 
W; thence to 40[deg]38'30.06'' N, 074[deg]07'41.13'' W; thence to 
40[deg]38'33.80'' N, 074[deg]07'14.86'' W; thence to 40[deg]38'43.93'' 
N, 074[deg]06'45.45'' W; thence to the point of origin (NAD 83).
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.10, 165.11, and 165.13 apply within the RNA.
    (2) Any vessel transiting through the RNA must make a direct 
passage. No vessel may stop, moor, anchor or loiter within the RNA at 
any time unless they are working on the bridge construction. Movement 
within the RNA is subject to a ``Slow-No Wake'' speed limit. All 
vessels may not produce a wake and may not attain speeds greater than 
five (5) knots unless a higher minimum speed is necessary to maintain 
bare steerageway.
    (3) There may be times that the First District Commander or the 
Captain of the Port (COTP) New York finds it necessary to close the RNA 
to vessel traffic. All closures will be limited to specific hours of 
the day. Mariners will be advised of all closure dates and times via 
Local Notice to Mariners and Broadcast Notice to Mariners in advance of 
closure times. During such closures, persons and vessels may request 
permission to enter the RNA by contacting the COTP or the COTP's on-
scene representative on VHF-16 or via phone at 718-354-4353 (Sector New 
York Command Center).
    (4) Vessels in the RNA must comply with directions given to them by 
the COTP or the COTP's on-scene representative. The ``on-scene 
representative'' of the COTP is any Coast Guard commissioned, warrant 
or petty officer who has been designated by the COTP to act on the 
COTP's behalf. The on-scene representative may be on a Coast Guard 
vessel; or other designated craft; or on shore and communicating with a 
Vessel Traffic Service New York Watchstander or vessels via VHF-FM 
radio or loudhailer. Members of the Coast Guard Auxiliary may be 
present to inform vessel operators of this regulation.
    (5) All other relevant regulations, including but not limited to 
the Rules of the Road, as codified in 33 CFR Subchapter E, Inland 
Navigational Rules, remain in effect within the RNA and must be 
strictly followed at all times.
    (c) Enforcement period. This regulation will be in place from 8:00 
a.m. on February 1, 2015 until December 31, 2016. This RNA's speed 
restrictions are enforceable 24 hours a day as long as this RNA is in 
place. The Coast Guard will enforce waterway closures only when 
necessary to protect people and vessels from hazards associated with 
bridge construction.
    (d) Notification. The Coast Guard will rely on the methods 
described in 33 CFR 165.7 to notify the public of the time and duration 
of any closure of the RNA. Violations of this RNA may be reported to 
the COTP at 718-354-4353 or on VHF-Channel 16.

    Dated: December 22, 2015.
L.L. Fagan,
Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2015-00178 Filed 1-8-15; 8:45 am]
BILLING CODE 9110-04-P


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