[Federal Register Volume 69, Number 112 (Thursday, June 10, 2004)]
[Rules and Regulations]
[Pages 32445-32448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-13076]


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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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