[Federal Register: June 10, 2004 (Volume 69, Number 112)]
[Rules and Regulations]
[Page 32445-32448]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10jn04-5]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 117
[CGD01-00-228]
RIN 1625-AA09 [Formerly 2115-AE47]
Drawbridge Operation Regulations: Mianus River, CT
AGENCY: Coast Guard, DHS.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Coast Guard is changing the drawbridge operation
regulations for the Metro-North Bridge, at mile 1.0, across the Mianus
River at Greenwich, Connecticut. This rule will require the bridge to
open on signal from 9 p.m. to 5 a.m., after advance notice is given.
The bridge presently does not open for vessel traffic between 9 p.m.
and 5 a.m., daily. This action will better meet the reasonable needs of
navigation.
DATES: This rule is effective July 12, 2004. Comments must reach the
Coast Guard on or before August 9, 2004.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket (CGD01-00-228) and are available for inspection or
copying at the First Coast Guard District, Bridge Branch Office, 408
Atlantic Avenue, Boston, Massachusetts, 02110, 7 a.m. to 3 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. John W. McDonald, Project Officer,
First Coast Guard District, (617) 223-8364.
SUPPLEMENTARY INFORMATION:
Regulatory History
The Coast Guard published at 65 FR 24640 a temporary 90-day
deviation and request for comments from the drawbridge operation
regulations on April 27, 2000, to provide immediate relief to
navigation and to obtain comments from the public concerning this rule.
The deviation was in effect from June 7, 2000, through September 4,
2000, during which time, the Metro-North Bridge was required to open on
signal, from 9 p.m. to 5 a.m., after a four-hour advance notice was
given. No comments were received during the comment period that ended
on September 30, 2000.
On January 8, 2001, we published a notice of proposed rulemaking
(NPRM) entitled Drawbridge Operation Regulations; Mianus River,
Connecticut,
[[Page 32446]]
in the Federal Register (66 FR 1281). In March 2001, we received one
comment in response to the notice of proposed rulemaking from Metro-
North Railroad, the owner of the Bridge. The bridge owner objected to
the additional crewing of the bridge based upon the additional cost
that would result and suggested a meeting with the Coast Guard to
discuss the proposed changes to the regulations. No public hearing was
requested and none was held.
Request for Comments
We encourage you to participate in this rulemaking by submitting
comments or related material. If you do so, please include your name
and address, identify the docket number for this rulemaking (CGD01-00-
228), indicate the specific section of this document to which each
comment applies, and give the reason for each comment. Please submit
all comments and related material in an unbound format, no larger than
8\1/2\ by 11 inches, suitable for copying. If you would like to know if
they reached us, please enclose a stamped, self-addressed postcard or
envelope. We will consider all comments and material received during
the comment period. We may change this rule in view of them.
Background and Purpose
The Metro-North Bridge, mile 1.0, across the Mianus River has a
vertical clearance of 20 feet at mean high water and 27 feet at mean
low water in the closed position.
The existing operating regulations in 33 CFR 117.209 require the
bridge to open on signal from 5 a.m. to 9 p.m., immediately for
commercial vessels and as soon as practicable, but no later than 20
minutes after the signal to open is given, for the passage of all other
vessel traffic. When a train scheduled to cross the bridge without
stopping has passed the Greenwich or Riverside stations and is in
motion toward the bridge, the draw must open as soon as the train has
crossed the bridge. From 9 p.m. to 5 a.m., the draw need not be opened
for the passage of vessels.
The Coast Guard received a request from a commercial vessel
operator requesting a change to the operating regulations for the
Metro-North Bridge. The commercial operator requested that the bridge
open for vessel traffic during the 9 p.m. to 5 a.m. time period when
the bridge is normally closed.
The Coast Guard published a temporary 90-day deviation from the
drawbridge operation regulations on April 27, 2000, to provide
immediate relief to navigation and to obtain comments from the public
concerning this rule. The deviation was in effect from June 7, 2000,
through September 4, 2000, during which time, the Metro-North Bridge
was required to open on signal, from 9 p.m. to 5 a.m., after a four-
hour advance notice was given. No comments were received during the
comment period, which ended on September 30, 2000. A late comment
letter was received from the commercial mariner that requested the rule
change. The mariner indicated that his vessel utilized the additional
opening time provided by the test deviation and made about 40 transits
after 9 p.m. during the test period. The commercial mariner has added
additional vessels which will also require bridge openings after 9
p.m., daily.
The Coast Guard believes that in the case of the Metro-North
Bridge, that changing the bridge operating regulations to require
openings between 9 p.m. and 5 a.m. with a four-hour notice from April 1
through October 31 and with a twenty four hour notice from November 1
through March 31 is reasonable because it provides for the needs of
navigation, as demonstrated by the demand for bridge openings during
the test deviation, and has no effect on rail traffic over the bridge.
Discussion of Comments and Changes
The Coast Guard received one comment letter from the bridge owner,
Metro North, in March 2001 which requested that this rule not be
implemented on the basis of the financial burden it will impose on the
bridge owner to crew the bridge for requested bridge openings between 9
p.m. and 5 a.m. and that the rule violated the Unfunded Mandates Reform
Act (``UMRA'') of 1995 (2 U.S.C. 1531-1538).
The mariner that requested this rule change did require bridge
openings between 9 p.m. and 5 a.m. as documented by the number of
openings recorded during the test deviation. Additionally, the mariner
indicated that he added additional vessels to his operating fleet which
will also require the bridge to open after 9 p.m. for their passage.
The Coast Guard's policy concerning regulatory changes to the
operating hours at bridges requires that bridges shall operate in
accordance with the reasonable needs of navigation. We believe that it
is a reasonable request to crew the bridge additional hours at night
during the summer months to allow commercial tour boats to return to
their docks after evening cruses. Additionally, there is no requirement
under this interim rule for the bridge owner to crew the bridge after 9
p.m. in an other than on-call status. The twenty four hour notice
during the winter months along with the four-hour notice during the
summer months will allow the Bridge Owner sufficient time to respond to
requests for opening without maintaining a crew on-site, at all times,
between 9 p.m. and 5 a.m. In addition, our policy requires that no
regulations shall be drafted solely for the purpose of saving the cost
of crewing a bridge or to save wear and tear on the structure.
Additionally, this rule does not impose a financial burden upon the
Bridge Owner, a non-federal entity, of over $100 million dollars, the
UMRA's economic threshold.
No public hearing was requested and none was held because the
bridge owner's request to meet with the Coast Guard would not provide
for public comment. The Coast Guard believes no new additional
information could be obtained by conducting a public hearing because
there is documented evidence that there is a navigational need during
the time period this final will require the bridge to be on call.
The Coast Guard believes that this rule will better meet the
present needs of navigation; therefore, no changes were made as a
result of the comments received.
Discussion of Rule
The Coast Guard is revising the operating regulation in 33 CFR
117.209(b) for the Metro-North Bridge by requiring the bridge to open
during the 9 p.m. to 5 a.m. time period.
The rule requires the draw to open on signal from April 1 through
October 31, from 9 p.m. to 5 a.m., after at least a four-hour advance
notice is given and then from November 1 through March 30, from 9 p.m.
to 5 a.m., after at least a twenty-four hours advance notice is given.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, 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. It is not ``significant'' under the
regulatory policies and procedures of the Department of Homeland
Security (DHS).
This conclusion is based on the fact that this bridge will only be
required to be crewed between 9 p.m. and 5 a.m., and only when a
request to open the bridge is given with a four-hour notice and twenty
four hour notice is given
[[Page 32447]]
from April 1 through October 31 and November 1 and March 31,
respectively.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we
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 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 conclusion is based on the fact that this bridge will only be
required to be crewed between 9 p.m. and 5 a.m., and only when a
request to open the bridge is given with a four-hour notice and twenty
four hour notice is given from April 1 through October 31 and November
1 and March 31, respectively.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could 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).
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 State, local, or tribal government, in the
aggregate, or by the private sector of $100,000,000 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 effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
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 concern an
environmental risk to health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This final rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does not have 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 Assistance
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 proposed rule does not use technical standards. Therefore, we
did not consider the use of voluntary consensus standards.
Environment
We have analyzed this final rule under Commandant Instruction
M16475.1D, which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (32)(e), of the Instruction, from further
environmental documentation. It has been determined that this final
rule does not significantly impact the environment.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
0
For the reasons set out in the preamble, the Coast Guard amends 33 CFR
part 117 as follows:
PART 117--DRAWBRIDGE OPERATION REGULATIONS
0
1. The authority citation for part 117 continues to read as follows:
Authority: 33 U.S.C. 499; Department of Homeland Security
Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued
under the authority of Pub. L. 102-587, 106 Stat. 5039.
0
2. Section 117.209(b) is revised to read as follows:
[[Page 32448]]
Sec. 117.209 Mianus River.
* * * * *
(b) The draw shall open on signal from April 1 through October 31,
from 9 p.m. to 5 a.m., after at least a four-hour advance notice is
given and from November 1 through March 30, from 9 p.m. to 5 a.m.,
after at least a twenty-four-hour advance notice is given by calling
the number posted at the bridge.
Dated: May 28, 2004.
Vivien S. Crea,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 04-13076 Filed 6-9-04; 8:45 am]
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