[Federal Register Volume 75, Number 2 (Tuesday, January 5, 2010)]
[Rules and Regulations]
[Pages 227-230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31228]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2008-0456]
RIN 1625-AA09


Drawbridge Operation Regulations; Harlem River, New York, 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 bridges across the Harlem 
River at New York City, New York. This final rule revises the 
drawbridge operation regulations by expanding the bridge opening 
periods and also removes redundant language and requirements that are 
no longer necessary.

DATES: This rule is effective February 4, 2010.

ADDRESSES: Comments and related material received from the public, as 
well as documents mentioned in this preamble as being available in the 
docket, are part of docket (USCG-2008-0456) and are available online at 
http://www.regulations.gov, inserting USCG-2008-0456 in the ``Keyword'' 
box, 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 Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, 
telephone 212-668-7165. If you have questions on viewing the docket 
call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone 
202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On August 7, 2008, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulations''; Harlem River, New 
York, in the Federal Register (73 FR 45922). We received two letters 
commenting on the proposed rule. No public meeting was requested, and 
none was held.
    On November 10, 2008, we published a supplemental notice of 
proposed rulemaking (SNPRM) entitled ``Drawbridge Operation 
Regulations'', Harlem River, New York, in the Federal Register (73 FR 
66571). We received one comment letter in response to our (SNPRM). No 
public meeting was requested, and none was held.

Background and Purpose

    The drawbridge operation regulations for the Harlem River are 
listed at 33 CFR 117.789, and require all the moveable bridges across 
the Harlem River, except the Spuyten Duyvil Bridge, to open on signal 
from 10 a.m. to 5 p.m. after a four-hour notice is given. From 5 p.m. 
through 10 a.m., all the bridges, except the Spuyten Duyvil Bridge, are 
not required to open for vessel traffic.
    The eleven moveable bridges across the Harlem River provide the 
following vertical clearances in the closed position:
    The 103rd Street Bridge has a vertical clearance of 55 feet at mean 
high water, and 60 feet at mean low water in the closed position.
    The 125th Street Bridge has a vertical clearance of 54 feet at mean 
high water and 59 feet at mean low water in the closed position.
    The Willis Avenue Bridge has a vertical clearance of 24 feet at 
mean high water and 30 feet at mean low water in the closed position.
    The Third Avenue Bridge has a vertical clearance of 25 feet at mean 
high water and 30 feet at mean low water in the closed position.
    The Metro North Park Avenue Bridge has a vertical clearance of 25 
feet at mean high water and 30 feet at mean low water in the closed 
position.
    The Madison Avenue Bridge has a vertical clearance of 25 feet at 
mean high water and 29 feet at mean low water in the closed position.
    The 145th Street Bridge has a vertical clearance of 25 feet at mean 
high water and 30 feet at mean low water in the closed position.
    The Macombs Dam Bridge has a vertical clearance of 27 feet at mean 
high water and 32 feet at mean low water in the closed position.
    The 207th Street Bridge has a vertical clearance of 26 feet at mean 
high water and 30 feet at mean low water in the closed position.
    The Broadway Bridge has a vertical clearance of 24 feet at mean 
high water and 29 feet at mean low water in the closed position.
    The Spuyten Duyvil Bridge has a vertical clearance of 5 feet at 
mean high water and 9 feet at mean low water in the closed position.
    The bridges across the Harlem River, except the Spuyten Duyvil 
Bridge, have a minimum of 24 feet at mean high water. The Spuyten 
Duyvil Bridge is much lower in vertical clearance, and as a result, is 
required under the existing regulations to open on signal at all times 
for the passage of vessel traffic.
    Most vessel operators that normally frequent the Harlem River 
utilize vessels that fit under the existing bridges in the closed 
position and do not require bridge openings.
    Coast Guard policy is that all bridges over navigable waterways 
should open for vessel traffic at any time, either on signal, or after 
some reasonable advance notice is given.
    As a result the Coast Guard is changing the drawbridge operation

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regulations for the Harlem River to require all the bridges that 
formerly did not open for the passage of vessel traffic from 5 p.m. to 
10 a.m. to open after at least a four-hour advance notice is given at 
all times, except during the morning and evening commuter rush hours.
    The Coast Guard is adding a requirement that all bridges, except 
the Spuyten Duyvil Bridge, need not open for the passage of vessel 
traffic during the morning and afternoon commuter rush hours, Monday 
through Friday, except federal holidays, to help reduce both vehicular 
traffic delays and delays to commuter trains during the work week. The 
Spuyten Duyvil Bridge was not included in the closed periods for the 
morning and afternoon rush hours because it is so low in vertical 
clearance. The vessel traffic that can fit under the other bridges 
without a bridge opening can not transit under the Spuyten Duyvil 
Bridge without a bridge opening.
    The Coast Guard is also adding a requirement that the maximum time 
the railroad bridges across the Harlem River may delay bridge openings 
for the passage of rail traffic be clearly defined as ten minutes in 
order to avoid lengthy delays that could hazard a vessel waiting for a 
bridge opening.
    The Coast Guard is removing obsolete language in the existing 
regulation that allows public vessels of the United States to be passed 
through each bridge as soon as possible because that provision is now 
required under 33 CFR 117.31, as part of the General Requirements for 
bridges.

Discussion of Comments and Changes

    The Coast Guard received two comment letters in response to our 
notice of proposed rulemaking (73 FR 45922) published on August 7, 
2008. The New York City Department of Transportation (NYCDOT), the 
owner of eight of the eleven bridges, objected to the proposal in our 
notice of proposed rulemaking that would require their bridges to open 
from 5 p.m. to 10 a.m. after a four-hour advance notice was given. 
NYCDOT stated that opening their bridges between 5 p.m. and 10 a.m. 
would cause an undue hardship to the city, resulting in traffic delays, 
and maintenance issues.
    The Coast Guard received a second letter in response to our notice 
of proposed rulemaking from Metro North Railroad (Metro North), an 
agency of the State of New York Metropolitan Transportation Authority, 
which stated that opening their bridge between 5 p.m. and 10 a.m. could 
cause major delays to their rail operations as a result of bridge 
openings occurring during peak commuter hours, and that it would also 
be a financial hardship to open their bridges from 5 p.m. to 10 a.m. 
due to the need to station additional work crews to address potential 
mechanical problems dictated by the condition of the bridge lift 
mechanism at their bridge.
    The Coast Guard policy regarding the promulgation of drawbridge 
operation regulations requires that no regulation shall be implemented 
for the sole purpose of saving the bridge owner the cost to operate a 
bridge, nor to save wear and tear mechanically on a bridge. It is the 
bridge owner's statutory and regulatory responsibility to provide the 
necessary draw tenders for the safe and prompt opening of a bridge and 
to maintain drawbridges in good operating condition. In that regard the 
additional expense to safely operate drawbridges either for the passage 
of normal vessel traffic or in case there may be a mechanical failure 
at the bridge is not a valid reason to not allow the bridges on the 
Harlem River to open for the passage of vessel traffic between 5 p.m. 
and 10 a.m. daily.
    In order to help provide additional relief and reduce delays to 
motorists and rail commuters the Coast Guard revised the supplemental 
notice of proposed rulemaking (73 FR 66571) published on November 10, 
2008, by providing peak commuter hour bridge closure periods.
    The Coast Guard received one comment letter in response to our 
supplementary notice of proposed rulemaking from Metropolitan 
Transportation Authority for the State of New York (NYS MTA). Their 
comment letter stated that the morning and evening rush hour closures 
the Coast Guard added to the supplemental notice of proposed rulemaking 
at the two Broadway Bridges between 6 a.m. and 9 a.m., and 5 p.m. to 7 
p.m., were more restrictive than the rush hour closures from 5 a.m. to 
10 a.m. and from 4 p.m. to 8 p.m. at the Park Avenue Bridge. They 
requested that the operating hours for the Broadway Bridge and the 
operating hours for the Park Avenue Bridge have the same closed periods 
for commuter hours to better facilitate rail traffic. If that was not 
operationally feasible, then Metro North requested that the restricted 
hours for the Broadway Bridge be 7 a.m. to 10 a.m. and 4 p.m. to 7 p.m. 
The Coast Guard initially based the rush hour closures at the Broadway 
Bridge on the vehicular traffic rush hours since both vehicular and 
rail traffic use the Broadway Bridges.
    The Coast Guard reviewed the drawbridge opening logs for the above 
bridges which indicated very few requests to open each bridge. This was 
expected since the normal waterway users utilize vessels that can fit 
under the bridges without bridge openings. However, the Coast Guard 
determined that based on the type of navigation and industry around the 
Broadway Bridge, the 7 a.m. to 10 a.m. and 4 p.m. to 7 p.m. closure 
periods would better balance the needs of both land and marine traffic.
    A second minor change was made to this final rule in the regulatory 
text in paragraph (b)(1) to correct the advance notice contact for the 
Triborough 125 Street Bridge at mile 1.3, which was incorrectly listed 
as the New York City Highway Radio (Hotline) Room and should be the 
Triborough Bridge and Tunnel Authority (TBTA).

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 
drawbridge opening logs that show very few requests for openings 
because most regular waterway users utilize vessels that can transit 
under the bridges without an opening. Based on the industry along the 
river and the vessels used on the waterway, the Coast Guard does not 
anticipate any significant increase in opening requests during the 
evening/early morning hours that would cause an undue burden to the 
bridge owner because of the promulgation of this rule.
    Through policy and regulation, the Coast Guard considers 
maintenance of a bridge an essential and unavoidable part of bridge 
ownership that has to be accepted for the safety of land and waterway 
traffic as well as the needs of navigation. Further, it is the bridge 
owner's responsibility to provide the necessary draw tenders for the 
safe and prompt opening of a bridge and to maintain drawbridges in good 
operating condition. It is also Coast Guard policy that no drawbridge 
operating regulation will be changed or implemented for the sole 
purpose of reducing the cost to operate or to save wear and tear on the 
operating mechanism of a drawbridge.

[[Page 229]]

    Additionally, the Coast Guard believes that the activity along the 
Harlem River will not increase; rather openings that may have been 
requested during the limited 10 a.m. to 5 p.m. time window will now 
have the entire 24 hour day (minus the commuter hours) to transit 
through the bridges and therefore, maintenance costs to the 
bridgeowners will be no greater.

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 none of the 
affected bridgeowners/commenters (NYCDOT, MetroNorth, SNY MTA) qualify 
as a small entity. While some vessel owners/operators might qualify as 
small entities, the revised schedule will provide for bridge openings 
on a 24-hour basis, as opposed to the existing 7-hour window, and thus 
will not have a significant economic impact on the vessel owner/
operators.

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 since the direct effect on State or 
local governments is small 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 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 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 do not 
individually or cumulatively have a significant effect on the human 
environment. 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

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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. Section 117.789 is revised to read as follows:


Sec.  117.789  Harlem River.

    (a) The draws of all railroad bridges across the Harlem River may 
remain in the closed position from the time a train scheduled to cross 
the bridge is within five minutes from the bridge, and until that train 
has fully crossed the bridge. The maximum time permitted for delay 
shall not exceed ten (10) minutes. Land and water traffic should pass 
over or through the draw as soon as possible to prevent unnecessary 
delays in the opening and closure of the draw.
    (b)(1) The draws of the bridges at 103 Street, mile 0.0, 125 Street 
(Triborough), mile 1.3, Willis Avenue, mile 1.5, Third Avenue, mile 
1.9, Madison Avenue, mile 2.3, 145 Street, mile 2.8, Macombs Dam, mile 
3.2, 207 Street, mile 6.0, and the Broadway Bridge, mile 6.8, shall 
open on signal if at least a four-hour advance notice is given to the 
New York City Highway Radio (Hotline) Room and the Triborough Bridge 
and Tunnel Authority (TBTA) for the 125 Street (Triborough), mile 1.3. 
The draws of the above bridges, except the Broadway Bridge, need not 
open for the passage of vessel traffic from 6 a.m. to 9 a.m. and 5 p.m. 
to 7 p.m., Monday through Friday, except federal holidays. The draw of 
the Broadway Bridge need not open for the passage of vessel traffic 
from 7 a.m. to 10 a.m. and 4 p.m. to 7 p.m., Monday through Friday, 
except federal holidays.
    (2) The draws of the Willis Avenue Bridge, mile 1.5, Third Avenue 
Bridge, mile 1.9, and the Madison Avenue Bridge, mile 2.3, need not 
open for the passage of vessel traffic at various times between 8 a.m. 
and 5 p.m. on the first Sunday in May and November. The exact time and 
date of each bridge closure will be published in the Local Notice to 
Mariners several weeks prior to each closure.
    (c) The draw of the Metro North (Park Avenue) Bridge, mile 2.1, 
shall open on signal, except, as provided in paragraph (a) of this 
section, if at least a four-hour advance notice is given. The draw need 
not open for the passage of vessel traffic from 5 a.m. to 10 a.m. and 4 
p.m. to 8 p.m., Monday through Friday, except Federal holidays.
    (d) The draw of the Spuyten Duyvil railroad bridge, mile 7.9, shall 
open on signal at all times, except as provided in paragraph (a) of 
this section.

    Dated: July 6, 2009.
Dale G. Gabel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-31228 Filed 1-4-10; 8:45 am]
BILLING CODE 9110-04-P