[Federal Register Volume 71, Number 203 (Friday, October 20, 2006)]
[Rules and Regulations]
[Pages 61895-61897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17577]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD01-06-033]
RIN 1625-AA09


Drawbridge Operation Regulations; Jamaica Bay and Connecting 
Waterways, Queens, NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is changing the drawbridge operation 
regulations governing the operation of the Beach Channel railroad 
bridge across Jamaica Bay, mile 6.7, at Queens, New York. This final 
rule requires the Beach Channel bridge to remain in the closed position 
during the morning and afternoon commuter rush hours from 6:45 a.m. to 
8:20 a.m. and 5 p.m. to 6:45 p.m., Monday through Friday, except 
Federal holidays. In addition, obsolete language shall also be removed 
from the existing regulatory text. This rule is expected to help 
facilitate commuter rail traffic while continuing to meet the present 
and anticipated needs of navigation.

DATES: This rule is effective November 20, 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 CGD01-06-033 and are available for inspection or 
copying at the First Coast Guard District, Bridge Branch Office, One 
South Street, New York, New York, 10004, between 7 a.m. and 3 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Ms. Judy Leung-Yee, Project Officer, 
First Coast Guard District, (212) 668-7195.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On May 24, 2006, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulations''; Jamaica Bay and 
Connecting Waterways, New York, in the Federal Register (71 FR 29869). 
We received six comment letters in response to the NPRM. No public 
hearing was requested and none was held.

Background and Purpose

    The Beach Channel railroad bridge across Jamaica Bay at mile 6.7 
has a vertical clearance of 26 feet at mean high water, and 31 feet at 
mean low water in the closed position. The existing drawbridge 
operating regulations listed at 33 CFR 117.5 require the bridge to open 
on signal at all times.
    Jamaica Bay facilitates both commercial and recreational vessel 
traffic. The owner of the bridge, New York City Transit, requested a 
change to the drawbridge operation regulations to help reduce commuter 
rail traffic delays during the morning and afternoon commuter hours.
    Under this final rule, the Beach Channel railroad bridge will not 
open for the passage of vessel traffic from 6:45 a.m. to 8:20 a.m. and 
from 5 p.m. to 6:45 p.m., Monday through Friday, except Federal 
holidays.
    On November 2, 2005, the Coast Guard implemented a 90-day temporary 
deviation with request for public comment (70 FR 66260), to test the 
above proposed rule change. The temporary test deviation was in effect 
from December 1, 2005 through February 28, 2006. No comments or 
complaints were received in response to the temporary test deviation.

Discussion of Comments and Changes

    The Coast Guard received six comment letters in response to the 
notice of proposed rulemaking. Two comments voiced no objection, three 
comments were in favor, and one comment objected to the rule change.
    Motiva Enterprises, an oil and gasoline distributor, objected to 
the rule change which would allow the bridge to remain closed during 
the morning and evening commuter rail rush hours. Motiva stated that 
keeping the bridge closed at any time would negatively impact their 
operation. They also stated that they receive approximately six barge 
deliveries each week and that their barges' transits are made at high 
tide.
    The Coast Guard believes that the negative impact Motiva claims is 
more a matter of inconvenience since the small number of barge transits 
they receive weekly would still be able to make their deliveries at or 
near the high tide in most cases.
    The Coast Guard further believes that the relatively short duration 
of the scheduled bridge closures Monday through Friday, coupled with 
the infrequency of high tide occurring during those closures, is 
unlikely to result in frequent missed deliveries. In addition, the 
bridge will open on demand on Saturday and Sunday thereby providing two 
full days with no closures at any time.
    As a result of the above information, the Coast Guard believes this 
final rule is reasonable.
    In addition, we discovered obsolete regulatory text within the 
existing regulation, which will also be removed under this final rule.
    The New York City Cross Bay Boulevard Bridge, mile 10.0, and the 
New York City Transit Authority Bridge, mile 10.6, which are listed 
under this section, have been subsequently permitted as fixed bridges 
by Coast Guard Bridge permits, (7-87-1) dated September 3, 1987 and (7-
89-1) dated August 30, 1989. The above bridges can no longer open for 
the passage of vessel

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traffic and shall be removed from this regulation under 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.
    This conclusion is based on the fact that vessel traffic would not 
be precluded from transiting through the Beach Channel railroad bridge 
each day, except for two closures of short duration, one in the 
morning, and one in the afternoon. Mariners would simply need to plan 
their daily transits in accordance with drawbridge operation schedule 
in order to help balance the needs of both rail and marine traffic.

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.
    This rule would affect the following entities, some of which may be 
small entities, commercial barges and recreational vessels intending to 
transit the Beach Channel span. 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 for the reasons set 
forth in the Regulatory Evaluation section.

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.
    No small entities requested Coast Guard assistance and none was 
given.
    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 an 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 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 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

    We have analyzed this rule under Commandant Instruction M16475.1D 
and Department of Homeland Security Management Directive 5100.1, which 
guide 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 considering that it relates to the

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promulgation of operating regulations or procedures for drawbridges. 
Under figure 2-1, paragraph (32)(e), of the instruction, an 
``Environmental Analysis Check List'' and a ``Categorical Exclusion 
Determination'' are not required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.


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; 33 CFR 1.05-1(g); section 
117.255 also issued under the authority of Pub. L. 102-587, 106 
Stat. 5039.


0
2. Amend Sec.  117.795, by revising paragraph (c) to read as follows:


Sec.  117.795  Jamaica Bay and Connecting Waterways.

* * * * *
    (c) The draw of the Beach Channel railroad bridge shall open on 
signal; except that, the draw need not open for the passage of vessel 
traffic, 6:45 a.m. to 8:20 a.m. and 5 p.m. to 6:45 p.m., Monday through 
Friday, except Federal holidays.
* * * * *

    Dated: October 3, 2006.
Timothy S. Sullivan,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
 [FR Doc. E6-17577 Filed 10-19-06; 8:45 am]
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