[Federal Register Volume 74, Number 186 (Monday, September 28, 2009)]
[Rules and Regulations]
[Pages 49323-49325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23278]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2009-0202]
RIN 1625-AA09


Drawbridge Operation Regulations; Raritan River, Arthur Kill and 
Their Tributaries, Staten Island, NY and Elizabeth, NJ

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard changed the drawbridge operating regulations 
governing the operation of the Arthur Kill (AK) Railroad Bridge at mile 
11.6, across Arthur Kill and the New Jersey Transit (NJTRO) Railroad 
Bridge at mile 0.5, across the Raritan River. This final rule is 
expected to better meet the present needs of navigation and enhanced 
needs of rail traffic resulting from the resumption of rail traffic 
across the Arthur Kill (AK) Bridge.

DATES: This rule is effective October 28, 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-2009-0202) and are available online by 
going to http://www.regulations.gov, inserting USCG-2009-0202 in the 
``Keyword'' box, and then clicking ``Search.'' This material is also 
available for inspection or copying at 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Mr. Gary Kassof, Project Officer, First Coast Guard 
District, telephone 212-668-7165,e-mail [email protected]. If you 
have any questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On June 24, 2009, we published an interim rule entitled 
``Drawbridge Operation Regulations''; Raritan River, Arthur Kill and 
their tributaries, Staten Island and Elizabeth, New Jersey, in the 
Federal Register (74 FR 29941). We received no comments on the interim 
rule. No public meeting was requested, and none was held.

Background and Purpose

    The Arthur Kill (AK) Railroad Bridge at mile 11.6, across Arthur 
Kill, has a vertical clearance of 31 feet at mean high water, and 35 
feet at mean low water in the closed position. The New Jersey Transit 
(NJTRO) Railroad Bridge at mile 0.5, across the Raritan River, has a 
vertical clearance of 8 feet at mean high water and 13 feet at mean low 
water in the closed position.
    The previous drawbridge operating regulations listed at 33 CFR 
117.747, required the draws of all bridges across the Raritan River, 
Arthur Kill and their tributaries to open on signal at all times; 
except that, from 7:30 a.m. to 10 a.m. and from 5 p.m. to 7:30 p.m., 
the draws may be opened for the passage of vessels for periods no 
longer than ten minutes or remain closed for the passage of land 
traffic for no longer than ten minutes.
    The New Jersey Transit Railroad Bridge at mile 0.5, across the 
Raritan River and the Arthur Kill (AK) Railroad Bridge at mile 11.6, 
across Arthur Kill were the only drawbridges operating under this 
regulation.
    Rail traffic was suspended for many years on the rail line that 
crosses the Arthur Kill (AK) Bridge. During the time rail traffic was 
suspended across Arthur Kill the Arthur Kill (AK) Railroad Bridge was 
locked in the full open position.
    Several years ago the Arthur Kill (AK) Railroad Bridge was 
mechanically and structurally rehabilitated as part of New York City 
Economic Development Corporation's Full Freight Access Initiative, and 
restored to good operating condition in 2007 enabling restoration of 
rail freight service across the Arthur Kill (AK) Railroad Bridge to the 
Staten Island Landfill facility and the New York Container Terminal, 
formerly known as the Howland Hook Terminal. Rail traffic began 
crossing the re-opened bridge in June of 2007.
    After a short period of time, it became apparent, that the then 
existing drawbridge operation regulations, would no longer effectively 
meet the present complex needs of navigation and the revitalized volume 
of rail traffic that would be crossing the Arthur Kill (AK) Railroad 
Bridge.
    The bridge owner, New York City Economic Development Corporation 
(NYCEDC), requested a change to the drawbridge operation regulations to 
help facilitate the resumption of rail traffic crossing the Arthur Kill 
(AK) Railroad Bridge.
    As a result of the above described transition in the needs of 
commerce, the Coast Guard conducted an evaluation, comprised of three 
temporary test deviations and an interim rule, with public comment 
periods, to help determine the best drawbridge operation regulations to 
meet the present and future needs of marine and rail transportation.
    Each test deviation modified the previous test as a result of their 
observed effectiveness and comments received from the public.
    After evaluating the results of our third temporary deviation the 
Coast Guard concluded that the operating procedure tested in the third 
deviation

[[Page 49324]]

was the most reasonable and effective drawbridge operation regulation 
which best addressed the present and future needs of navigation and 
rail traffic.
    We then implemented an interim rule with request for comment, in 
order to allow the operating procedures tested by our third deviation 
to become effective the day after that third deviation ended.

Discussion of Comments and Changes

    The Coast Guard received no comment letters in response to the 
interim rule. 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 this final rule is not a 
significant regulatory action. This conclusion is based upon the fact 
that vessel and rail traffic will both be able to transit over and 
through the Arthur Kill (AK) Railroad Bridge under a balanced and 
reasonable schedule.

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 the commercial marine 
traffic and rail traffic will both be able to transit over and through 
the Arthur (AK) Railroad Bridge under a balanced and reasonable 
schedule.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM 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 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.

[[Page 49325]]

    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 Department of Homeland Security 
Management Directive 023-01 and 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 this action is one of a category of actions which does not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded, under figure 2-1, 
paragraph (32)(e), of the Instruction.
    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:

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 a new Sec.  117.702 to read as follows:


Sec.  117.702  Arthur Kill

    (a) The draw of the Arthur Kill (AK) Railroad Bridge shall be 
maintained in the full open position for navigation at all times, 
except during periods when it is closed for the passage of rail 
traffic.
    (b) The bridge owner/operator shall maintain a dedicated telephone 
hot line for vessel operators to call the bridge in advance to 
coordinate anticipated bridge closures. The telephone hot line number 
shall be posted on signs at the bridge clearly visible from both the up 
and downstream sides of the bridge.
    (c) Tide restrained deep draft vessels shall notify the bridge 
operator, daily, of their expected times of vessel transits through the 
bridge, by calling the designated telephone hot line.
    (d) The bridge shall not be closed for the passage of rail traffic 
during any predicted high tide period if a tide restrained deep draft 
vessel has provided the bridge operator with an advance notice of their 
intent to transit through the bridge. For the purposes of this 
regulation, the predicted high tide period shall be considered to be 
from two-hours before each predicted high tide to a half-hour after 
each predicted high tide taken at the Battery, New York.
    (e) The bridge operator shall issue a manual broadcast notice to 
mariners of the intent to close the bridge for a period of up to thirty 
minutes for the passage of rail traffic, on VHF-FM channels 13 and 16 
(minimum range of 15 miles) 90-minutes before and again at 75-minutes 
before each bridge closure.
    (f) Beginning at 60 minutes prior to each bridge closure, automated 
or manual broadcast notice to mariners must be repeated at 15 minute 
intervals and again at 10 and 5 minutes prior to each bridge closure 
and once again as the bridge begins to close and appropriate sound 
signal given.
    (g) Two fifteen minute bridge closures may be provided each day for 
the passage of multiple rail traffic movements across the bridge. Each 
fifteen minute bridge closure shall be separated by at least a thirty 
minute period when the bridge is returned to and remains in the full 
open position. Notification of the two fifteen minute closures shall 
follow the same procedures outlined in paragraphs e and f above.
    (h) A vessel operator may request up to a 30 minute delay for any 
bridge closure in order to allow vessel traffic to meet tide or current 
requirements; however, the request to delay the bridge closure must be 
made within 30 minutes following the initial broadcast for the bridge 
closure. Requests received after the initial 30 minute broadcast will 
not be granted.
    (i) In the event of a bridge operational failure, the bridge 
operator shall immediately notify the Coast Guard Captain of the Port 
New York. The bridge owner/operator must provide and dispatch a bridge 
repair crew to be on scene at the bridge no later than 45 minutes after 
the bridge fails to operate. A repair crew must remain at the bridge at 
all times until the bridge has been fully restored to normal operations 
or the bridge must be raised and locked in the fully open position.

0
3. Section 117.747 is revised to read as follows:


Sec.  117.747  Raritan River

    (a) The draw of New Jersey Transit Rail Operations Railroad Bridge 
at mile 0.5 shall open on signal; except that, from 6 a.m. to 9:30 a.m. 
and 4:30 p.m. to 7:30 p.m., Monday through Friday, except holidays, the 
bridge need not open.
    (b) The bridge owner shall provide and keep in good legible 
condition two clearance gauges with figures not less than 12 inches 
high designed, installed and maintained according to the provisions of 
Sec.  118.160 of this chapter.
    (c) Trains and locomotives shall be controlled so that any delay in 
opening the draw span shall not exceed ten minutes. However, if a train 
moving toward the bridge has crossed the home signal for the bridge 
before the signal requesting opening of the bridge is given, the train 
may continue across the bridge and must clear the bridge interlocks 
before the bridge may be opened.

    Dated: September 8, 2009.
Joseph L. Nimmich,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-23278 Filed 9-25-09; 8:45 am]
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