[Federal Register Volume 69, Number 162 (Monday, August 23, 2004)]
[Rules and Regulations]
[Pages 51767-51769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19280]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD01-04-111]
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 from construction equipment and 
barges, and removal and replacement of the fender system on the 
bridge's eastern span. 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 3 p.m. e.d.t. on August 6, 2004 
until 11:59 p.m. e.d.t. on October 15, 2004.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket CGD01-04-111 and are 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. Under 5 U.S.C. 553(b)(B) the Coast Guard finds that good 
cause exists for not publishing an NPRM. Immediate structural repairs 
are needed on the Norwalk Metro North Railroad Bridge. The repairs to 
the bridge and its fendering system must be accomplished for the safety 
of the vessels and persons transiting in the waters of the Norwalk 
River under the Metro North Railroad Bridge, Norwalk, Connecticut. 
Under 5 U.S.C. 553(d)(3) the Coast Guard finds that good cause exists 
for not publishing an NPRM and for making this rule 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. The 
fendering system on the eastern span of the Norwalk Metro North 
Railroad Bridge is seriously dilapidated. This condition of the 
fendering system was determined during recent emergency fendering work 
in the western channel due to an allision in April 2004, which 
destroyed the fendering system. The Coast Guard was only notified of 
the time frame to conduct these repairs on July 30, 2004 by Connecticut 
Department of Transportation. The delay inherent in the NPRM process is 
contrary to the public interest and impracticable, as immediate action 
is needed to close the waterway to prevent vessels from transiting in 
the eastern channel during construction, which will completely remove 
and replace the current fendering system. While the bridge has been 
determined to be safe for rail traffic, the disrepair of a fender 
system that is designed to protect bridge piers from direct allision 
leaves the bridge piers exposed to the possibility of direct damage. In 
addition, at times during this construction, the bridge will be lacking 
a fendering system, and there will be exposed pilings of the new 
fendering system in the waterway.

Background and Purpose

    While conducting repairs on the bridge fender system under the 
western span of the bridge, workers determined that the fendering 
system under the bridge in the eastern channel is seriously dilapidated 
and in need of replacement. While the bridge has been determined to be 
safe for rail traffic, the disrepair of a fender system that is 
designed to protect bridge piers from direct allision leaves the bridge 
piers exposed to the possibility of direct damage and thus poses 
serious potential dangers and hazards if not rectified immediately. 
Further damage to the bridge piers could impede rail traffic, and put 
the safety of the bridge and the public utilizing the rail service at 
risk. In addition, at times during this construction, the bridge will 
be lacking a fendering system, and there will be exposed pilings of the 
new fendering system in the waterway.
    Currently, contractors are on the western side of the channel 
completing repairs from an April 2004 allision that destroyed the 
fendering system in the western channel. When repair work on the 
western side of the railroad bridge is completed the contractor will 
swing its equipment to the east side of the channel and make repairs to 
the fender system on the eastern side of the railroad bridge.
    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, those persons conducting bridge repair operations 
and the public using the Metro North Railroad, from further allisions 
with the bridge piers as well as commercial and recreational vessels. 
It is also necessary to prevent vessels from colliding with exposed 
steel pilings that are part of the fender 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 damage to the 
Metro North Railroad Bridge that may be caused due to lack of a fender 
system around bridge piers of the eastern span of the Bridge. The 
safety zone is in effect from 3 p.m. on August 6, 2004, until 11:59 
p.m. on October 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 
proscribed by this rule. In addition, recreational vessels may pass on 
the west 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

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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 
safely 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 specified time period. 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 (Public Law 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 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. 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

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consider the use of voluntary consensus standards.

Environment

    We have analyzed this 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 34(g), of the Instruction, from further environmental 
documentation. A final ``Environmental Analysis Check List'' and a 
final ``Categorical Exclusion Determination'' are 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. Add temporary Sec.  165.T01-111 to read as follows:


Sec.  165.T01-111  Safety Zone: Metro North Railroad Bridge over the 
Norwalk River, Norwalk, Connecticut.

    (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) Effective date. This section is effective from 3 p.m. EDT on 
August 6, 2004 until 11:59 p.m. EDT on October 15, 2004.
    (c) Regulations. In accordance with the general regulations in 
Sec.  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.
    (d) Authorizations: Recreational vessels are authorized to pass 
under the bridge's west span. All commercial vessels may pass under the 
bridge's west span upon the request and authorization by the Captain of 
the Port, Long Island Sound.
    (e) Compliance. All persons and vessels shall comply with the 
instructions of the COTP, or the designated on-scene U.S. Coast Guard 
representative. Designated on-scene U.S. Coast Guard representatives 
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: August 6, 2004.
Peter J. Boynton,
Captain, U.S. Coast Guard, Captain of the Port, Long Island Sound.
[FR Doc. 04-19280 Filed 8-20-04; 8:45 am]
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