
[Federal Register Volume 77, Number 69 (Tuesday, April 10, 2012)]
[Rules and Regulations]
[Pages 21436-21438]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8536]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0263]
RIN 1625-AA00


Safety Zone, East River, Brooklyn Bridge Scaffolding Repair, 
Brooklyn, NY

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 East River, in the vicinity of the Brooklyn 
Bridge. This action is necessary to provide for the safety of life and 
property on the navigable waters during emergency repairs to stabilize 
and remove the damaged scaffolding under the eastern span of the 
bridge. This rule is intended to restrict all vessels from a portion of 
the East River during the repair and removal of the damaged 
scaffolding.

DATES: This rule is effective from March 27, 2012 until April 30, 2012.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2012-0263 and are available online 
by going to http://www.regulations.gov, inserting USCG-2012-0263 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the 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, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or email Lieutenant William George, Coast Guard; 
telephone (718) 354-4114, email William.J.George@uscg.mil. If you have 
questions on viewing the docket, call Renee V. Wright, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this temporary final 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 immediate action is necessary to 
ensure the safety of mariners and vessels intending to transit on the 
East River in the vicinity of the Brooklyn Bridge where damaged 
corrugated metal scaffoldings and loosely hanging cables pose a 
potential hazard to navigation. Temporary repairs of the damaged 
section of the scaffolding are currently ongoing. The removal of the 
scaffolding is expected to take approximately three to four weeks. 
During this period falling debris may pose an imminent danger to the 
safety of the vessels and their occupants transiting the East River in 
the vicinity of the Brooklyn Bridge. Therefore, a temporary safety zone 
to protect transiting mariners and vessels from this hazard is needed 
immediately.
    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. The Coast Guard finds that good 
cause exists for making this rule effective less than 30 days after 
publication because to do otherwise would be contrary to the public 
interest since immediate action is required to protect mariners and 
vessels transiting under the bridge while workers conduct emergency 
repairs and removal of the damaged scaffolding.

Basis and Purpose

    The legal basis for this rule is 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; Public Law 107-295, 116 Stat. 2064; Department of Homeland 
Security Delegation No. 0170.1.
    On March 14, 2012 the Coast Guard received a report that a crane 
barge struck the scaffolding under the eastern span of the Brooklyn 
Bridge. As a result of the allision the corrugated metal panels that 
make up the scaffolding structure were damaged and some of the cables 
that supported the scaffolding were broken and are loosely hanging

[[Page 21437]]

approximately 15 feet from the bottom of the bridge, effectively 
reducing the vertical clearance of the bridge. As a result of the 
decreased clearance, Vessel Traffic Service New York implemented a 
temporary measure restricting vessels with an air draft greater than 90 
feet from transiting under the Brooklyn Bridge.
    During a meeting with New York City Office of Emergency Management 
the Coast Guard was advised that some of the corrugated metal 
scaffolding panels that were struck and damaged were not properly 
secured and may pose a hazard to vessels intending to transit under 
that portion of the Brooklyn Bridge. The Coast Guard and New York 
Police Department Harbor Unit began advising vessels to transit around 
the impacted area. New York City Office of Emergency Management on 
behalf of the Unified Command requested that the Coast Guard establish 
a temporary safety zone to restrict vessels from transiting under the 
eastern portion of the Brooklyn Bridge until emergency temporary 
repairs and removal of the scaffolding and cables have been completed.
    This temporary safety zone is necessary to ensure the safety of 
vessels and their occupants during the emergency repairs and removal of 
the scaffolding under the bridge. The Captain of the Port New York 
(COTP) has determined that establishing a temporary safety zone to 
restrict vessels from transiting on the East River under the eastern 
portion of the Brooklyn Bridge where scaffolding are being repaired or 
removed will help ensure the safety of persons and property and help 
minimize the associated risks associated with the emergency repair 
work.

Discussion of Rule

    The COTP is establishing a temporary safety zone to ensure the 
safety of mariners, passengers, and vessels during the emergency repair 
and removal work necessary to stabilize the damaged scaffolding on the 
Brooklyn Bridge.
    The safety zone will encompass all waters of the East River 
directly below the scaffolding under the eastern portion of the bridge, 
from the centerline of the bridge to the tower on the Brooklyn side. 
The safety zone will encompass the navigable waters within a 270 yards 
by 50 yards area on the eastern side of the East River directly below 
the east span of the Brooklyn Bridge. All persons and vessels shall 
comply with the instructions of the COTP or the designated 
representative. Entry into, transiting, or anchoring within the safety 
zone is prohibited unless authorized by the COTP New York or the 
designated representative. The COTP or the designated representative 
may be contacted via VHF Channel 16.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Executive Order 12866 and Executive Order 13563

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, as supplemented by Executive order 13563, 
Regulatory Planning and Review, and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that Order. The 
Office of Management and Budget has not reviewed it under that Order.
    This determination is based on the fact that a temporary safety 
zone will restrict access to a small portion of the navigable waterways 
of the East River. Vessels will be able to navigate around the safety 
zone. Furthermore, vessels may be authorized to transit through the 
temporary safety zone with the permission of the COTP or the designated 
representative.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. 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. This rule will affect the following entities, some of which 
may be small entities: The owners and operators of vessels intending to 
transit or anchor in a small portion of the East River during the 
effective period.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reason: Vessel 
traffic can pass safely around the safety zone. Before the effective 
period, we will issue maritime advisories widely available to users of 
the waterway.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    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.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

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.

Taking of Private Property

    This rule will 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.

[[Page 21438]]

Civil Justice Reform

    This 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.

Protection of Children

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

Indian Tribal Governments

    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.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this 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 concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule involves establishment of a 
temporary safety zone on the waters of the East River in the vicinity 
of Brooklyn Bridge. An environmental analysis checklist and a 
categorical exclusion determination will be available in the docket 
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, and 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; 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; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T01-0223 to read as follows:


Sec.  165.T01-0223  Safety Zone; East River, Brooklyn Bridge 
Scaffolding Repair, Brooklyn, NY.

    (a) Regulated area. The following area is a temporary safety zone: 
All waters of the East River within the area bounded by a line drawn 
from the following approximate position 40[deg]42'14.727'' N, 
073[deg]59'41.094'' W; thence west to approximate position 
40[deg]42'20.648'' N, 073[deg]59'48.466'' W; thence north to 
approximate position 40[deg]42'21.672'' N, 073[deg]59'47.050'' W; 
thence east to approximate position 40[deg]42'15.825'' N, 
073[deg]59'39.728'' W; then along the shoreline and back to the point 
of origin (NAD 83).
    (b) Enforcement period. This rule is effective from March 27, 2012 
until April 30, 2012.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.23 apply as well as the following regulations.
    (d) Definitions. The following definitions apply to this section:
    (1) Designated Representative. A ``designated representative'' is 
any Coast Guard commissioned, warrant or petty officer of the U.S. 
Coast Guard who has been designated by the COTP, Sector New York to act 
on his or her behalf. The designated representative may be on an 
official patrol vessel or may be on shore and will communicate with 
vessels via VHF-FM radio or loudhailer. In addition, members of the 
Coast Guard Auxiliary may be present to inform vessel operators of this 
regulation.
    (2) Official Patrol Vessels. Official patrol vessels may consist of 
any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement 
vessels assigned or approved by the COTP.
    (e) Vessel operators desiring to enter or operate within the 
regulated areas shall contact the COTP or the designated representative 
via VHF channel 16 or 718-354-4353 (Sector New York Command Center) to 
obtain permission to do so.
    (f) The COTP or the designated representative may delay or 
terminate this demolition at any time it is deemed necessary to ensure 
the safety of life or property. All persons and vessels in the 
regulated area shall comply with the instructions of the COTP New York 
or the designated representative. Representatives comprise 
commissioned, warrant, and petty officers of the Coast Guard. Upon 
being hailed by a U.S. Coast Guard vessel by siren, radio, flashing 
light or other means, the operator of a vessel shall proceed as 
directed.

    Dated: March 27, 2012.
L.L. Fagan,
Rear Admiral, U.S. Coast Guard, Captain of the Port New York.
[FR Doc. 2012-8536 Filed 4-9-12; 8:45 am]
BILLING CODE 9110-04-P


