[Federal Register Volume 73, Number 100 (Thursday, May 22, 2008)]
[Rules and Regulations]
[Pages 29688-29690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11443]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2008-0010]
RIN 1625-AA09


Drawbridge Operation Regulations; Mill Neck Creek, Oyster Bay, NY

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard has changed the drawbridge operation 
regulations that govern the operation of the Bayville Bridge, mile 0.1, 
across Mill Neck Creek at Oyster Bay, New York. This final rule will 
allow the bridge to open on signal between 7 a.m. and 11 p.m. from May 
1 through October 31 and between 7 a.m. and 5 p.m., Monday through 
Friday, from November 1 through April 30. At all other times the bridge 
will open after a two-hour advance notice is

[[Page 29689]]

given by calling the number posted at the bridge. The purpose of this 
rule is to help relieve the bridge owner from the burden of crewing the 
bridge during time periods that the bridge receives few requests to 
open.

DATES: This rule is effective June 23, 2008.

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 (USCG-2008-0010) and are available online at http://www.regulations.gov. This material is also available for inspection or 
copying at two locations: the Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590-0001, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays, and the 
First Coast Guard District, Bridge Branch, One South Street, New York, 
NY 10004, between 9 a.m. and 5 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 March 7, 2008, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulations; Mill Neck Creek, 
Oyster Bay, NY,'' in the Federal Register (73 FR 12315). We received 
two letters commenting on the proposed rule. No public meeting was 
requested, and none was held.

Background and Purpose

    The Bayville Bridge has a vertical clearance of 9 feet at mean high 
water, and 16 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.
    On March 8, 2007, the bridge owner, the County of Nassau, 
Department of Public Works, requested a change to the drawbridge 
operation regulations to help provide relief from the burden of 
providing a draw tender at the bridge during time periods when bridge 
seldom receives a request to open.
    On April 13, 2007, the Coast Guard authorized a temporary deviation 
with a request for public comment in order to test the proposed rule 
change. The temporary test deviation was in effect from May 25, 2007, 
through November 20, 2007, with a comment period open until November 
30, 2007. The Coast Guard received no comments or complaints from 
mariners in response to the temporary test deviation.
    As a result of the above information, the Coast Guard published a 
notice of proposed rulemaking proposing to permanently change the 
drawbridge operation regulations for the Bayville Bridge. Under the 
notice of proposed rulemaking the bridge would be required to open on 
signal between 7 a.m. and 11 p.m., from May 1 through October 31, and 
between 7 a.m. and 5 p.m., Monday through Friday, from November 1 
through April 30. At all other times the draw shall open on signal 
after at least a two-hour advance notice is provided by calling the 
number posted at the bridge.

Discussion of Comments and Changes

    The Coast Guard received two comment letters from the New York 
State Office of Parks and Tennessee Gas Pipeline Company in response to 
the notice of proposed rulemaking. Both comment letters stated no 
objection to the proposed rule change and as a result, no changes have 
been made to this final rule.

Regulatory Analysis

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analysis 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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 will still 
be able to transit through the Bayville Bridge at any time provided 
they give a two-hour advance notice during the time periods the bridge 
is not crewed.

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 vessel traffic will still 
be able to transit through the Bayville Bridge at any time provided 
they give a two-hour advance notice during time periods the bridge is 
not crewed.

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). 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 a State, local, or tribal government, in 
the

[[Page 29690]]

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 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 
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 considering that it relates to the promulgation of 
operating regulations or procedures for drawbridges.
    Under figure 2-1, paragraph (32)(e), of the instruction, an 
environmental analysis checklist and a categorical exclusion 
determination are not required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.

Regulations

0
For the reasons discussed in the preamble, the Coast 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.


0
2. Add Sec.  117.800 to read as follows:


Sec.  117.800  Mill Neck Creek.

    The draw of the Bayville Bridge, mile 0.1, at Oyster Bay, New York, 
shall open on signal between 7 a.m. and 11 p.m., from May 1 through 
October 31, and between 7 a.m. and 5 p.m., Monday through Friday, from 
November 1 through April 30. At all other times the draw shall open on 
signal provided at least a two-hour advance notice is given by calling 
the number posted at the bridge.

    Dated: May 13, 2008.
Timothy S. Sullivan,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E8-11443 Filed 5-21-08; 8:45 am]
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