E6-13895. Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, New York City, NY

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule; extension of effective period.

SUMMARY:

The Coast Guard has changed the effective period for the temporary regulation governing the operation of the New York City Highway Bridge (Belt Parkway), at mile 0.8, across Mill Basin, at New York City, New York. This temporary final rule allows the bridge owner to extend the effective period during which only one of the two moveable spans need open for the passage of vessel traffic. This rule is necessary to facilitate the completion of the ongoing bridge deck replacement.

DATES:

This temporary rule is effective from September 8, 2006 through December 30, 2006.

ADDRESSES:

Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD01-06-006 and are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, 408 Atlantic Avenue, Boston, Massachusetts 02110, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Ms. Judy Leung-Yee, Project Officer, First Coast Guard District, [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On January 30, 2006, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, New York City, NY,” in the Federal Register (71 FR 4852). We received no comments in response to the NPRM.

On March 13, 2006, we published a temporary final rule (TFR) entitled “Drawbridge Operation Regulations; Jamaica Bay and Connecting Waterways, New York City, NY,” in the Federal Register (71 FR 12621).

We did not publish an NPRM for this extension of the temporary final rule's effective period. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because it is impracticable to issue an NPRM prior to the previously announced September 7, 2006 expiration of the temporary final rule, and because any interruption of the arrangements permitted by the temporary final rule would be contrary to the public interest. For the same reason, the Coast Guard finds under 5 U.S.C. 553(d) that good cause exists for making this extension of the temporary final rule effective less than 30 days after publication. The deck replacement for the New York City Highway Bridge is ongoing, vital, and necessary work that must be performed without delay as a result of the deterioration of the existing bridge deck which could fail if not replaced with all due speed. Work is behind schedule due to unforeseen construction delays and bad weather. In order to assure the continued safe and reliable operation of the bridge, construction should be allowed to continue through December 30, 2006.

Background and Purpose

The New York City Highway Bridge (Belt Parkway), has a vertical clearance of 34 feet at mean high water and 39 feet at mean low water in the closed position. The existing regulations are listed at 33 CFR 117.795(b).

The owner of the bridge, New York City Department of Transportation (NYCDOT), requested a temporary change to the drawbridge operation regulations in November 2005, to facilitate the replacement of the bridge roadway deck. During the prosecution of that rehabilitation construction, the opening span that was undergoing deck replacement could not open for vessel traffic. As a result, the bridge owner requested that only one of the two opening spans open for the passage of vessel traffic from March 1, 2006 through September 7, 2006.

The Coast Guard published a temporary final rule (71 FR 12621) on March 13, 2006, effective from March 8, 2006 through September 7, 2006, to facilitate the above construction. The work was scheduled to be completed by September 7, 2006, but due to unforeseen construction delays and weather conditions, the work will not be completed by September 7, 2006, as planned.

As a result, the extension of the effective period of this regulation is necessary to allow the bridge owner to continue to open only one of the two moveable spans for the passage of vessel traffic from March 8, 2006 through December 30, 2006, to facilitate the completion of the ongoing bridge deck replacement.

Discussion of Rule

This temporary rule change would amend 33 CFR 117.795 by suspending paragraph (b), which lists the New York City Highway Bridge (Belt Parkway), and by adding a temporary paragraph (d) to allow single span bridge openings from March 8, 2006 through December 30, 2006.

Regulatory Evaluation

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 the vessel traffic that normally transits this bridge should not be precluded from transiting due to single span bridge openings.

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 rule would not have a significant economic impact on a substantial number of small entities for the following reason: Mill Basin is navigated predominantly by recreational vessels.

The single span bridge openings should not preclude vessel traffic from transiting the bridge because the recreational vessels that normally use this waterway should be able to transit through the bridge with the reduced horizontal clearance of 67.5 feet due to their relative small size.

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.

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).

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 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 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 Commandant Instruction M16475.1D, and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. 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 Analysis Check List” 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 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(g); Department of Homeland Security Delegation No. 0170.1; section 117.255 also issued under the authority of Public Law 102-587, 106 Stat. 5039.

2. From September 8, 2006 through December 30, 2006, § 117.795 is amended by suspending paragraph (b) and adding a temporary paragraph (d), to read as follows:

§ 117.795

Jamaica Bay and Connecting Waterways.

* * * * *

(d)(1) The New York City Highway Bridge (Belt Parkway), mile 0.8, across Mill Basin, need only open one moveable span for the passage of vessel traffic from March 8, 2006 through December 30, 2006. The draw need not be opened for the passage of vessel traffic from 12 p.m. to 9 p.m. on Sundays from May 15 through September 30, and on Memorial Day, Independence Day, and Labor Day. However, on these days the draw shall open on signal from the time two hours before to one hour after the predicted high tide(s).

(2) For the purpose of this section, predicted high tide(s) occur 15 minutes later than that predicted for Sandy Hook, as documented in the tidal current data, which is updated, generated and published by the National Oceanic and Atmospheric Administration/National Ocean Service.

Dated: August 7, 2006.

Timothy S. Sullivan,

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