2024-24970. Drawbridge Operation Regulation; Dutch Kills, Queens County, NY

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Department of Homeland Security

Coast Guard

1. 33 CFR Part 117
2. [Docket No. USCG-2024-0392]
3. RIN 1625-AA09

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary interim rule and request for comments.

SUMMARY:

The Coast Guard is temporarily modifying the operating schedule that governs the Hunters Point Ave Bridge across Dutch Kills, mile 1.4, at Queens County, NY. NYCDOT installed a temporary work platform at Hunters Point Ave Bridge on May 6, 2024 to perform blasting and painting operations. The work platform prevents the bridge from opening to marine traffic. Until the bridge operations are complete the bridge must remain in the closed position.

DATES:

This temporary interim rule is effective October 30, 2024 through 12:01 a.m. on July 1, 2025. Comments and related material must reach the Coast Guard on or before November 29, 2024.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov. Type the docket number (USCG-2024-0392) in the “SEARCH” box and click “SEARCH”. In the Document Type column, select “Supporting & Related Material.”

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary interim rule, call or email, Stephanie E. Lopez, Coast Guard; telephone [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of proposed rulemaking

Pub. L. Public Law

§ Section

U.S.C. United States Code

NYCDOT New York City Department of Transportation

TIR Temporary Interim Rule

II. Background Information and Regulatory History

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), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This bridge has a work platform installed which keeps the bridge in the closed to navigation position.

On May 6, 2024, the Coast Guard issued a general deviation which allowed the bridge owner, NYCDOT, to deviate from the current operating schedule in 33 CFR 117.801(d) to conduct bridge blasting and painting operations. Due to additional work that has been discovered, the bridge owner has requested an extension of closure that will take the project past the allowable 180 days for a deviation. Since the bridge cannot be brought back to operating condition until the completion of the mechanical rehabilitation there is insufficient time to provide a reasonable comment period and then consider those comments before issuing the modification.

However, we will be soliciting comments on this rulemaking during the first 30 days while this rule is in effect. If the Coast Guard determines that changes to the temporary interim rule are necessary, we will publish a temporary final rule or other appropriate document.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective in less than 30 days after publication in the Federal Register . For reasons presented above, delaying the effective date of this rule would be impracticable and contrary to the public interest because the bridge is currently incapable of normal operations and will not be back into full operation until the rehabilitation work can be completed.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 499. Hunters Point Ave Bridge across Dutch Kills is a bascule bridge with a vertical clearance of 5.3 feet mean high water in the closed position and unlimited vertical clearance in the open position.

The existing drawbridge regulation, 33 CFR 117.801(d), states that the draw of the Hunters Point Ave Bridge, mile 1.4, shall open on signal if at least two-hour advance notice is given. NYCDOT, the bridge owner, has requested to keep the bridge in the closed position during the remainder of the work.

IV. Discussion of the Rule

The Coast Guard is issuing this rule to allow the bridge owner of the Hunters Point Ave Bridge across Dutch Kills, mile 1.4, Queens, New York, to keep the bridge in the closed to navigation position until July 1, 2025. The rule is necessary to accommodate the completion of the blasting and painting operations.

V. Regulatory Analyses

We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders. ( print page 86242)

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, it has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the ability that vessels can still transit the bridge given 3 hours advanced notice.

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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.

While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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.

C. 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).

D. Federalism and Indian Tribal Government

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

E. 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.

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). The Coast Guard has determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of appendix A, table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

List of Subjects in 33 CFR Part 117

• Bridges

For the reasons discussed in the preamble, the Coast Guard amends 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; DHS Delegation No. 00170.1. Revision No. 01.3

2. In § 117.801:

a. Paragraph (d) is stayed; and

b. Paragraph (h) is added. The addition reads as follows:

§ 117.801

Newtown Creek, Dutch Kills, English Kills, and their tributaries.

* * * * *

(h) The draw of the Hunters Point Avenue Bridge, mile 1.4, across Dutch Kills at Queens, may be maintained in the closed to navigation position until July 1, 2025.

M.E. Platt,

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