[Federal Register Volume 70, Number 245 (Thursday, December 22, 2005)]
[Rules and Regulations]
[Pages 75937-75939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24337]


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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: Final rule.

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SUMMARY: The Coast Guard has changed the drawbridge operation 
regulations for the Metro-North Bridge, at mile 1.0, across the Mianus 
River at Greenwich, Connecticut. This final rule requires the bridge to 
open on signal from 9 p.m. to 5 a.m., after an advance notice is given. 
The bridge previously did not open for vessel traffic between 9 p.m. 
and 5 a.m., daily. This action is expected to better meet the present 
needs of navigation.

DATES: This rule is effective January 23, 2006.

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 Information

    On April 27, 2000, the Coast Guard published a temporary 90-day 
deviation and request for comments from the drawbridge operation 
regulations to provide immediate relief to navigation and to obtain 
comments from the public concerning this rule (65 FR 24640). 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, 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.
    On June 10, 2004, we published an interim final rule and request 
for comment entitled Drawbridge Operation Regulations Mianus River, 
Connecticut, in the Federal Register (69 FR 32445). We received no 
comments in response to the interim final rule.

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 shall 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 will be 
adding an additional vessel,

[[Page 75938]]

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. 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

    After the Coast Guard issued the NPRM in January 2001, the Coast 
Guard received one comment letter from the bridge owner, Metro North, 
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 of 1995 (2 U.S.C. 1531-
1538).
    During the test deviation the mariner that requested this rule 
change did request bridge openings between 9 p.m. and 5 a.m. as 
documented by the number of openings recorded in the bridge logs. The 
mariner indicated further that he added additional vessels to his 
operating fleet which will also require the bridge to open after 9 
p.m., daily.
    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 reasonable to crew the Metro-North Bridge for 
additional hours at night during the summer months to allow commercial 
tour boats to return to their docks after evening cruises. The twenty-
four-hour notice during the winter months along with the four-hour 
notice during the summer months should allow the bridge owner 
sufficient time to respond to any requests for bridge opening without 
actually maintaining a crew on-site, at all times.
    In addition, Coast Guard policy requires that no regulations shall 
be drafted solely for the purpose of saving the cost of maintenance or 
operation of the structure. See, Bridge Administration Manual, 
COMDTINST M165905C.
    In addition, this rule does not impose a financial burden on the 
bridge owner, a non-federal entity, of over $100 million dollars, the 
Unfunded Mandates Reform Act's economic threshold.
    No public hearing was requested and none was held. 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 operating on call.
    No comments were received during the comment period for the Interim 
Final Rule issued in June, 2004. The Coast Guard believes that this 
final rule will better meet the present needs of navigation therefore, 
no changes were made to this final rule.

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., when a request to open 
the bridge is given.

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., when a request to open 
the bridge is given and that this bridge owner, Metro-North, is not 
itself a small entity.

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). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

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

[[Page 75939]]

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; 33 CFR 1.05-1(g); Department of 
Homeland Security Delegation No. 0170.1; 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:


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: December 7, 2005.
David P. Pekoske,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 05-24337 Filed 12-21-05; 8:45 am]
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