[Federal Register Volume 69, Number 121 (Thursday, June 24, 2004)]
[Rules and Regulations]
[Pages 35250-35253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14372]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-075]
RIN 1625-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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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 which destroyed the fender system under the bridge's 
western span, thereby exposing the bridge piers to the possibility of 
direct allision. 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. June 16, 2004 until 11:59 
p.m. on August 1, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD01-04-

[[Page 35251]]

075 and will be available for inspection or copying at Group/MSO Long 
Island Sound, 120 Woodward Ave., 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 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 barges carrying stone. A temporary safety zone was 
implemented (CGD1-04-050) effective from 11 a.m. on April 11, 2004 to 
11:59 p.m. April 16, 2004, and was then extended from April 17, 2004 to 
June 15, 2004, (69 FR 23655) to prevent traffic from transiting under 
the bridge, exposing the bridge piers under the western span of the 
bridge to the possibility of direct allision. At that time, the damaged 
fendering system extended into the navigable channel and presented a 
hazard to navigation. 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, as well as the extensive repairs needed, the 
repairs to the bridge are running longer than originally anticipated. 
On June 8, 2004, CONNDOT has requested extension of the safety zone in 
order to complete repairs. Currently, the bridge piers in the western 
channel remain exposed with no fendering system. Steel pilings that are 
the support structure for the new fendering system have been installed, 
and are exposed in the waterway, presenting an additional hazard to 
navigation if vessels were permitted to pass in the Channel. 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 exposed steel pilings in 
the west channel.

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 direction 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, steel pilings constituting 
part of the new fendering have been installed in the west channel, and 
are exposed in the waterway. These piling present a hazard to hazard to 
navigation for any vessels utilizing the waterway. 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 exposed steel pilings 
which are part of the fendering system being constructed.

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 June 16, 2004 
until 11:50 p.m. on August 1, 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. In addition, 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,

[[Page 35252]]

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).

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 thee Federal Register (66 FR 363661, 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.

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

    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. June 16, 2004 to 11:59 p.m. on August 1, 2004 add 
temporary Sec.  165.T01-075 to read as follows:


Sec.  165.T01-075  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.

[[Page 35253]]

    (b) Exceptions: Recreational vessels are authorized to pass under 
the bridge's east span.
    (c) 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.
    (2) Persons desiring to contact the Captain of the Port may do so 
at telephone number (203) 468-4401 or via VHF Marine Band Radio Channel 
16 (156.8 MHz).
    (3) 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: June 14, 2004.
Peter J. Boynton,
Captain, U.S. Coast Guard, Captain of the Port, Long Island Sound.
[FR Doc. 04-14372 Filed 6-23-04; 8:45 am]
BILLING CODE 4910-15-M