2011-17115. Drawbridge Operation Regulations; Harlem River, New York City, NY

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule with request for comments.

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://www.regulations.gov.

(2) Fax: [phone].

(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, [phone], [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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://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://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://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 81/2 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://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 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 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.

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

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.

2. In § 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:

§ 117.789

Harlem River.

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(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.

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Dated: June 22, 2011.

Daniel A. Neptun,

Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.