[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Rules and Regulations]
[Pages 40234-40237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17115]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2011-0509]
RIN 1625-AA09


Drawbridge Operation Regulations; Harlem River, New York City, NY

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is temporarily changing the drawbridge 
operating regulations governing the operation of the 103rd Street 
(Wards Island) Pedestrian Bridge at mile 0.0, across the Harlem River 
at New York City, New York. This interim rule is necessary to 
facilitate the completion of a major bridge rehabilitation project at 
the 103rd Street (Wards Island) Pedestrian Bridge while soliciting 
comments from the public.

DATES: This rule is effective in the CFR from July 8, 2011 through 
September 30, 2011. This rule is effective with actual notice for 
purposes of enforcement on July 9, 2011 and is effective through 
September 30, 2011. Comments and related material must reach the Coast 
Guard on or before August 8, 2011.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2011-0509 using any one of the following methods:
    (1) Federal eRulemaking Portal: http:[sol][sol]www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: 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.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail Mr. Gary Kassof, Project Officer, First Coast 
Guard District, (212) 668-7165, [email protected]. 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:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. All comments received will be posted, 
without change, to http:[sol][sol]www.regulations.gov and will include 
any personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2011-0509), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail or hand delivery, but please use only one of 
these means. If you submit a comment online via 
http:[sol][sol]www.regulations.gov, it will be considered received by 
the Coast Guard when you successfully transmit the comment. If you fax, 
hand delivery, or mail your comment, it will be considered as having 
been received by the Coast Guard when it is received at the Docket 
Management Facility. We recommend that you include your name and a 
mailing address, an e-mail address, or a phone number in the body of 
your document so that we can contact you if we have questions regarding 
your submission.
    To submit your comment online, go to 
http:[sol][sol]www.regulations.gov, click on the ``submit a comment'' 
box, which will then become highlighted in blue. In the ``Document 
Type'' drop down menu select ``Proposed Rules'' and insert ``USCG-2011-
0509'' in the ``Keyword'' box. Click ``Search'' then click on the 
balloon shape in the ``Actions'' column. If you submit your comments by 
mail or hand delivery, submit them in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you 
submit them by mail and would like to know that they reached the 
Facility, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material received during 
the comment period and may change this rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to 
http:[sol][sol]www.regulations.gov, click on the ``read comments'' box, 
which will then become highlighted in blue. In the ``Keyword'' box 
insert ``USCG-2011-0509'' and click ``Search.'' Click the ``Open Docket 
Folder'' in the ``Actions'' column. You may also visit the Docket 
Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200

[[Page 40235]]

New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment), if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act, system of 
records notice regarding our public dockets in the January 17, 2008 
issue of the Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one on or before August 8, 2011 using one of the four 
methods specified under ADDRESSES. Please explain why one would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

Regulatory Information

    The Coast Guard is issuing this temporary interim rule without 
prior notice and opportunity to comment pursuant to authority under 
section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 
553(b)).
    This provision authorizes an agency to issue a rule without prior 
notice and opportunity to comment when the agency for good cause finds 
that those procedures are ``impracticable, unnecessary, or contrary to 
the public interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds 
that good cause exists for not publishing a notice of proposed 
rulemaking (NPRM) with respect to this rule.
    The Coast Guard previously issued two temporary deviations from the 
regulation governing the operation of the 103rd Street (Wards Island) 
Pedestrian Bridge to facilitate completion of a major rehabilitation 
project. The first temporary deviation was effective from January 10, 
2011 through April 29, 2011. The second temporary deviation became 
effective on April 30, 2011 and will end on July 8, 2011.
    The bridge owner, New York City Department of Transportation, 
advised the Coast Guard on May 27, 2011, that they recently discovered 
additional areas of the bridge that are in need of repair, and that the 
rehabilitation project will not be completed by July 8, 2011. The 
rehabilitation repairs must be completed before the bridge will be able 
to open again for the passage of vessel traffic.
    It is impractical to issue a NPRM and take public comment before 
the current temporary deviation expires on July 8, 2011.
    We are requesting public comment on the temporary change to the 
regulation governing the operation of the 103rd Street (Wards Island) 
Pedestrian Bridge. If we receive public input that indicates a need to 
revise the temporary change to the drawbridge's operating regulation, 
or the conditions it imposes, or raises any other significant public 
concerns, we will address those concerns prior to issuing any final 
rule.
    Under 5 U.S.C. 553(d)(3), the Coast Guard also finds good cause 
exists, for the same reasons discussed above, for making this rule 
effective less than 30 days after publication in the Federal Register.

Basis and Purpose

    The 103rd Street (Wards Island) Pedestrian Bridge, across the 
Harlem River, mile 0.0, at New York City, New York, has a vertical 
clearance in the closed position of 55 feet at mean high water and 60 
feet at mean low water. Most vessel traffic that uses this waterway can 
fit under the draw without requiring bridge openings. The drawbridge 
operation regulations are listed at 33 CFR 117.789(b)(1).
    The bridge has remained in the closed position since January 10, 
2011, in order to complete its rehabilitation. The owner of the bridge, 
New York City Department of Transportation, has requested an extension 
of the bridge closure to complete unforeseen additional repairs.
    The Coast Guard published a temporary deviation from the regulation 
governing the operation of the 103rd Street (Wards Island) Pedestrian 
Bridge on January 20, 2011, (76 FR 3516), authorizing the bridge to 
remain in the closed position effective from January 10, 2011 through 
April 29, 2011. The bridge owner requested a second temporary deviation 
on March 21, 2011, to complete the rehabilitation repairs at the 
bridge. As a result, the Coast Guard published a second temporary 
deviation on April 11, 2011, (76 FR 19910), effective from April 30, 
2011 through July 8, 2011.
    On May 27, 2011, the bridge owner requested an extension of the 
bridge closure through September 30, 2011. They advised the Coast Guard 
that work would not be completed before the second temporary deviation 
ended on July 8, 2011, because the bridge owner recently discovered 
additional areas of the bridge that are in need of repair.
    Because the requested extension of the bridge closure would exceed 
180 days, we are issuing a temporary interim rule requesting public 
comment in order to both facilitate completion of the bridge 
rehabilitation and to have the public participate in the rulemaking 
process.
    Under this temporary interim rule, the 103rd Street (Wards Island) 
Pedestrian Bridge may remain in the closed position from July 9, 2011 
through September 30, 2011.

Discussion of Rule

    The Coast Guard is temporarily changing the drawbridge operation 
regulations listed at 33 CFR 117.789(b)(1).
    This temporary interim rule for the 103rd Street (Wards Island) 
Pedestrian Bridge will allow the bridge to remain in the closed 
position from July 9, 2011 through September 30, 2011, to facilitate 
completion of bridge rehabilitation repairs.

Regulatory Analysis

    We developed this interim 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, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders.
    The Coast Guard determined that this rule is not a significant 
regulatory action for the following reasons. The bridge presently can't 
open for vessel traffic due to the fact that rehabilitation repairs 
have not been completed. This action will facilitate completion of the 
bridge repairs. Most vessel traffic that uses this waterway can fit 
under the draw without requiring bridge openings. Vessels that cannot 
pass under the closed draw may take an alternate route on the Hudson 
River.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will have a significant

[[Page 40236]]

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 section 5 U.S.C. 605(b) that this 
rule will not have a significant economic impact on a substantial 
number of small entities. This rule will affect the following entities, 
some of which may be small entities: The owners or operators of vessels 
intending to transit the bridge.
    This action will not have a significant economic impact on a 
substantial number of small entities for the following reasons. The 
bridge presently cannot open for the passage of vessel traffic because 
the rehabilitation repairs are not completed. This action will 
facilitate completion of the bridge repairs. Most vessel traffic that 
uses this waterway can fit under the draw without requiring bridge 
openings. Vessels that cannot pass under the closed draw may take an 
alternate route using the Hudson River.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offer to assist small 
entities in understanding the temporary interim rule so that they can 
better evaluate its effects on them and participate in the rulemaking. 
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 proposed 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 (adjusted for 
inflation) 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 cause 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 Department of Homeland Security 
Management Directive 5100.1, 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 made a preliminary determination that this action is not likely to 
have a significant effect on the human environment because it simply 
promulgates the operating regulations or procedures for drawbridges. We 
seek any comments or information that may lead to the discovery of a 
significant environmental impact from this rule.
    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.

[[Page 40237]]

List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard is 
amending 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. In Sec.  117.789, paragraph (b)(1) is temporarily suspended from 
July 9, 2011 through September 30, 2011, and paragraph (b)(3) is 
temporarily added from July 9, 2011 through September 30, 2011, to read 
as follows:


Sec.  117.789  Harlem River.

* * * * *
    (b)(3) The draws of the bridges at 103 Street, mile 0.0, need not 
open for the passage of vessel traffic from July 9, 2011, through 
September 30, 2011. The draws of the 125 Street (Triborough) bridge, 
mile 1.3, the Willis Avenue Bridge, mile 1.9, the Madison Avenue 
Bridge, mile 2.3, the 145 Street Bridge, mile 2.8, the Macombs Dam 
Bridge, mile 3.2, the 207 Street Bridge, 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) Bridge at 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.
* * * * *

    Dated: June 22, 2011.
Daniel A. Neptun,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2011-17115 Filed 7-7-11; 8:45 am]
BILLING CODE 9110-04-P