[Federal Register Volume 69, Number 84 (Friday, April 30, 2004)]
[Rules and Regulations]
[Pages 23655-23657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9773]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-035]
RIN 1625-AA00


Safety Zone; Metro North Railroad Bridge Over the Norwalk River, 
Norwalk, CT

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone in the 
waters surrounding the Metro North Railroad Bridge over the Norwalk 
River, Norwalk, Connecticut. This zone is necessary to protect vessels 
that wish to transit past the bridge due to an allision that occurred 
on April 11, 2004, destroying the fendering system under the bridge's 
western span, thereby exposing the bridge piers to the possibility of 
direct allision with an unprotected bridge structure. In addition, the 
damaged fendering system extends into the navigable channel, causing a 
hazard to navigation. Entry into this zone is prohibited unless 
authorized by the Captain of the Port Long Island Sound, New Haven, 
Connecticut.

DATES: This rule is effective from 12 a.m. April 17, 2004 until 11:59 
p.m. on June 15, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD01-04-035 and will be available for 
inspection or copying at Group/MSO Long Island Sound, New Haven, CT, 
between 9 a.m. and 3 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Lieutenant A. Logman, Waterways 
Management Officer, Coast Guard Group/Marine Safety Office Long Island 
Sound at (203) 468-4429.

SUPPLEMENTARY INFORMATION:

Regulatory History

    We did not publish a notice of proposed rulemaking (NPRM) for this 
regulation. Good cause exists for not publishing an NPRM and for making 
this regulation effective less than 30 days after Federal Register 
publication. Any delay encountered in this regulation's effective date 
would be impracticable and contrary to public interest since immediate 
action is needed to restrict and control maritime traffic while 
transiting in the waters of

[[Page 23656]]

the Norwalk River under the Metro North Railroad Bridge, Norwalk, 
Connecticut. On April 11, 2004, the fendering under the western span of 
the bridge was completely destroyed by an allision with two stone 
barges. The bridge piers under the western span of the bridge are now 
exposed to the possibility of direct allision by traffic passing under 
the bridge. In addition, the damaged fendering system extends into the 
navigable channel and presents a hazard to navigation. The delay 
inherent in the NPRM process is contrary to the public interest and 
impracticable as immediate action is needed to prevent further allision 
with the bridge and prevent collision with the damaged fendering system 
that extends into the channel. A temporary safety zone was implemented 
(CGD01-04-050) effective from 11 a.m. on April 11, 2004 to 11:59 p.m. 
April 16, 2004. Due to the extensive damage on the bridge and the need 
for work to be approved by various State and Federal agencies prior to 
commencing, an extension of that temporary rulemaking is necessary.

Background and Purpose

    On Sunday April 11, 2004 at approximately 2:40 a.m., two barges 
filled with stone being pushed by a barge hit the pilings of the 
fendering system on the western span of the Metro North Railroad Bridge 
over the Norwalk River, Norwalk, Connecticut. The allision by these 
barges completely destroyed the fendering system under the western span 
of the bridge. While the bridge has been determined to be safe for rail 
traffic, the lack of a fendering system, that is designed to protect 
bridge piers from direct allision, leaves the bridge piers exposed to 
the possibility of direct damage. Further damage to the bridge pier 
could impede rail traffic and the safety of the bridge and public 
utilizing the rail service. In addition, the fendering system that was 
damaged extends into the navigable channel and presents a hazard to 
navigation. The Coast Guard is establishing a safety zone in all waters 
of the Norwalk River in Norwalk, Connecticut within 100 yards of the 
Metro North Railroad Bridge. This safety zone is necessary to protect 
the safety of the bridge, bridge operations and public using the Metro 
North Railroad from further allision directly with the bridge piers. It 
is also necessary to prevent vessels from colliding with the damaged 
fendering system currently extending into the channel.

Discussion of Rule

    This regulation establishes a temporary safety zone on the waters 
of the Norwalk River within 100 yards of the Metro North Railroad 
Bridge, Norwalk Connecticut. This action is intended to prohibit vessel 
traffic in a portion of Norwalk River to prevent further damage to the 
Metro North Railroad Bridge, which may be caused due to lack of a 
fendering system around bridge piers around the western span of the 
Bridge. The safety zone is in effect from 12 a.m. on April 17, 2004 
until 11:59 p.m. on June 15, 2004. Marine traffic may transit safely 
outside of the safety zone during the effective dates of the safety 
zone, allowing navigation of the rest of the Norwalk River except for 
the portion delineated by this rule. However, recreational vessels may 
pass on the east side of the channel, and commercial vessels may 
request permission to transit the area from the Captain of the Port, 
Long Island Sound. Other entry into this zone is prohibited unless 
authorized by the Captain of the Port, Long Island Sound.
    Any violation of the safety zone described herein is punishable by, 
among others, civil and criminal penalties, in rem liability against 
the offending vessel, and license sanctions.

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). We expect the economic impact of this rule will be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. This regulation may have some 
impact on the public, but the potential impact will be minimized for 
the following reasons: the safety zone is only for a temporary period, 
vessels may transit in all areas of the Norwalk River other than the 
area of the safety zone, recreational vessels may pass on the east side 
of the channel, and commercial vessels may request permission to 
transit the area from the Captain of the Port, Long Island Sound.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will 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 may affect the following entities, some of which 
may be small entities: the owners or operators of vessels intending to 
transit or anchor in those portions of the Norwalk River covered by the 
safety zone. For the reasons outlined in the Regulatory Evaluation 
section above, this rule will not have a significant 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.

Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), the Coast Guard 
wants to assist small entities in understanding this rule so that they 
can better evaluate its effects on them and participate in the 
rulemaking. If this rule will affect your small business, organization, 
or governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please call Lieutenant A. Logman, 
Waterways Management Officer, Group/Marine Safety Office Long Island 
Sound, at (203) 468-4429.
    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).

[[Page 23657]]

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 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect 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 will not concern 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 will 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.
    To help the Coast Guard establish regular and meaningful 
consultation and collaboration with Indian and Alaskan Native tribes, 
we published a notice in the Federal Register (66 FR 36361, July 11, 
2001) requesting comments on how to best carry out the Order. We invite 
your comments on how this rule might impact tribal governments, even if 
that impact may not constitute a ``tribal implication'' under the 
Order.

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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action, therefore it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    The Coast Guard considered the environmental impact of this rule 
and concluded that, under figure 2-1, paragraph 34(g), of Commandant 
Instruction M16475.1D, this rule is categorically excluded from further 
environmental documentation. A Categorical Exclusion Determination is 
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, Waterways.

0
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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 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. From 12 a.m. April 17, 2004 to 11:59 p.m. on June 15, 2004 add 
temporary Sec.  165.T01-035 to read as follows:


Sec.  165.T01-035  Safety Zone: Metro North Railroad Bridge over the 
Norwalk River, Norwalk CT.

    (a) Location. The following area is a safety zone: All waters of 
the Norwalk River, Norwalk, Connecticut, within 100 yards of the Metro 
North Railroad Bridge.
    (b) Regulations. (1) In accordance with the general regulations in 
165.33 of this part, entry into or movement within this zone is 
prohibited unless authorized by the Captain of the Port (COTP), Long 
Island Sound, except:
    (i) Recreational vessels are authorized to pass under the bridge's 
east span.
    (ii) All commercial vessels may pass under the bridge's east span 
upon the request and authorization by the Captain of the Port, Long 
Island Sound.
    (2) All persons and vessels shall comply with the instructions of 
the COTP, or the designated on-scene U.S. Coast Guard representative. 
On-scene Coast Guard patrol personnel include commissioned, warrant, 
and petty officers of the Coast Guard on board Coast Guard, Coast Guard 
Auxiliary, and local, state, and federal law enforcement vessels.

    Dated: April 17, 2004.
Joseph J. Coccia,
Captain, U.S. Coast Guard, Captain of the Port, Long Island Sound.
[FR Doc. 04-9773 Filed 4-29-04; 8:45 am]
BILLING CODE 4910-15-P