Rule2024-27429
Safety Zone; Hackensack River, Kearny and Secaucus, NJ
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 21, 2024
Effective
November 21, 2024
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 225 (Thursday, November 21, 2024)</title>
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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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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
<a href="/cdn-cgi/l/email-protection#cc86a9aaaabea9b5e281e295b9a2a7a9be8cb9bfafabe2a1a5a0"><span class="__cf_email__" data-cfemail="3e745b58584c5b47107310674b50555b4c7e4b4d5d5910535752">[email protected]</span></a>.
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: <a href="http://www.navcen.uscg.gov">http://www.navcen.uscg.gov</a>. 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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