[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Rules and Regulations]
[Pages 79637-79639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31016]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2008-0697]
RIN 1625-AA09


Drawbridge Operation Regulation; Intracoastal Waterway (ICW), 
Barnegat Bay, Seaside Heights, NJ

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is changing the drawbridge operation 
regulations of the S37 Bridge, at ICW mile 14.1, across Barnegat Bay at 
Seaside Heights, NJ. The final rule will allow the drawbridge to 
operate on an advance notice basis during specific times of the year. 
This change will result in more efficient use of the bridge during 
months of infrequent transit.

DATES: This rule is effective January 29, 2009.

ADDRESSES: Comments and related materials received from the public, as 
well as documents mentioned in this preamble as being available in the 
docket, are part of docket USCG-2008-0697 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, between 
9 a.m. and 5 p.m., Monday through Friday, except Federal holidays and 
the Commander (dpb), Fifth Coast Guard District, Federal Building, 1st 
Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 between 8 a.m. 
and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Terrance Knowles, Environmental Protection Specialist, Fifth Coast 
Guard District, at (757) 398-6587. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On August 22, 2008, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulations; Intracoastal 
Waterway (ICW), Barnegat Bay, Seaside Heights, NJ'' in the Federal 
Register (73 FR 49622). We received no comments on the published NPRM. 
No public meeting was requested, and none was held.

Background and Purpose

    The New Jersey Department of Transportation (NJDOT) is responsible 
for the operation of the S37 Bridge, at ICW mile 14.1, across Barnegat 
Bay at Seaside Heights, NJ. NJDOT requested advance notification for 
vessel openings from December 1 to March 31 from 8 a.m. to 11 p.m. for 
the drawbridge due to the infrequency of requests.
    In the closed-to-navigation position, the S37 Bridge, at ICW mile 
14.1, across Barnegat Bay at Seaside Heights, NJ, has a vertical 
clearance of 30 feet, above mean high water. The existing operating 
regulations for the drawbridge is set out in 33 CFR Sec.  117.733(c), 
which require the bridge to open on signal except from December 1 
through March 31 from 11 p.m. to 8 a.m., the draw need not be opened; 
from April 1 through November 30, from 11 p.m. to 8 a.m. the draw shall 
open if at least four hours notice is given; and from Memorial Day 
through Labor Day from 8 a.m. to 8 p.m., the draw need only open on the 
hour and half hour.
    A review of the bridge logs for 2005 to 2007 supplied by NJDOT 
revealed from December 1 through March 31 between 8 a.m. to 11 p.m., 
the drawbridge opened for vessels a total of 5, 9, and 35 times per 
year, respectively. The year 2007 was an anomaly, based on unseasonably 
warm weather for the winter months.
    Due to the infrequency of requests for vessel openings during the 
winter months, NJDOT requested to change the current operating 
regulations from December 1 through March 31 from 8 a.m. to 11 p.m. of 
every year by requiring the draw span to open on signal if at least 
four hours notice is given at all times from December 1 through March 
31.

Discussion of Comments and Changes

    The Coast Guard received no comments to the NPRM. Based on the 
information provided, we will implement a final rule with no changes to 
the NPRM.

Regulatory Analyses

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

[[Page 79638]]

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. We reached this conclusion based on the 
fact that mariners can plan their trips in accordance with the 
scheduled bridge openings, to minimize delays and vessels that can pass 
under the bridge without a bridge opening may do so at all times.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
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 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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 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 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 would not create an 
environmental risk to health or risk to safety that might 
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 would 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.

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 and, 
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.
    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.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 117 as follows:

[[Page 79639]]

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; Department of Homeland 
Security Delegation No. 0170.1.

0
2. Revise Sec.  117.733(c)(1) to read as follows:


Sec.  117.733  New Jersey Intracoastal Waterway.

* * * * *
    (c) * * *
    (1) From December 1 through March 31, the draw need only open if at 
least four hours notice is given.
* * * * *

    Dated: December 9, 2008.
Fred M. Rosa, Jr.,
Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard 
District.
 [FR Doc. E8-31016 Filed 12-29-08; 8:45 am]
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