[Federal Register: November 10, 2008 (Volume 73, Number 218)]
[Proposed Rules]               
[Page 66571-66574]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10no08-29]                         

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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: Supplemental Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is issuing a supplemental notice of proposed 
rulemaking to revise our notice of proposed rulemaking (73 FR 45922) 
published on August 7, 2008. The notice of proposed rulemaking did not 
include a provision to allow ten of the eleven moveable bridges across 
the Harlem River to remain closed during the morning and afternoon 
commuter rush hours. It also did not specify the maximum time railroad 
bridges may delay bridge openings for the passage of rail traffic.

DATES: Comments and related material must reach the Coast Guard on or 
before December 10, 2008.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2008-0456 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) 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.
    (3) 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.
    (4) Fax: (202) 493-2251.

[[Page 66572]]


FOR FURTHER INFORMATION CONTACT: Mr. Joe Arca, Project Officer, First 
Coast Guard District, (212) 668-7165.
    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://www.regulations.gov and will include any 
personal information you have provided. We have an agreement with the 
Department of Transportation to use the Docket Management Facility. 
Please see DOT's ``Privacy Act'' paragraph below.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-0456), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. We recommend that you include your name and 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. 
You may submit your comments and materials by electronic means, mail, 
fax, or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and materials by only one 
means. If you submit them by mail or 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. We may change this 
proposed rule in view of them.

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 at 
any time. Enter the docket number for this rulemaking (USCG-2008-0456) 
in the Search box, and click ``Go>>.'' You may also visit either 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, 20590-0001, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays; or First Coast Guard District, Bridge 
Branch, One South Street, New York, NY, 10004, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

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 to the Docket Management Facility at the address under 
ADDRESSES explaining 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.

Background and Purpose

    On August 7, 2008, we published a notice of proposed rulemaking (73 
FR 45922); wherein, we proposed to change the drawbridge operation 
regulations governing the operation of all bridges across the Harlem 
River, New York.
    We did not include in our original notice of proposed rulemaking 
our proposal to require ten of the eleven moveable bridges across the 
Harlem River to remain closed during the morning and afternoon commuter 
rush hours, Monday through Friday and the maximum time railroad bridges 
may delay bridge openings for the passage of rail traffic. This 
supplemental notice of proposed rulemaking will add those additional 
provisions.
    The existing drawbridge operation regulations for the Harlem River, 
lists the operating hours for eleven moveable bridges. The eleven 
moveable bridges across the Harlem River provide the following vertical 
clearances in the closed position:
    The 103 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 125 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 145 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 207 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 two Broadway Bridges have 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 existing drawbridge operating regulations listed at 33 CFR 
117.789, 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 at least a four-hour notice is given to the New York City 
Highway Radio (Hotline) Room, and from 5 p.m. and 10 a.m. all the 
bridges, except the Spuyten Duyvil Bridge, need not open for vessel 
traffic.
    The moveable bridges across the Harlem River, listed above, provide 
at least 24 feet of vertical clearance in the closed position, except 
for the Spuyten Duyvil Bridge.
    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.

Discussion of Proposed Rule

    Under the existing drawbridge operation regulations ten of the 
eleven moveable bridges listed presently do not open for vessel traffic 
between 5 p.m. and 10 a.m. each day.
    The Spuyten Duyvil Bridge railroad bridge, which is much lower in 
vertical clearance than all the other bridges, is the only moveable 
bridge listed in the existing regulations that provides bridge openings 
at all times of the day.

[[Page 66573]]

    The Coast Guard is proposing to change the existing regulations to 
require the bridges in the existing regulations that do not normally 
open for vessel traffic between 5 p.m. and 10 a.m. to now open after at 
least a four-hour advance notice is given.
    The Coast Guard believes that all bridges over navigable waterways 
should open for vessel traffic at any time either on signal or after an 
advance notice is given unless there is no existing navigation 
presently utilizing the waterway.
    In addition, the Coast Guard is also proposing that ten of the 
eleven moveable bridges need not open for the passage of vessel traffic 
during the morning and afternoon commuter rush hours to help reduce 
both vehicular traffic delays and delays to commuter trains during the 
work week, Monday through Friday.
    The draws of the 103 Street Bridge, 125 Street Bridge, Willis 
Avenue Bridge, Third Avenue Bridge, Madison Avenue Bridge, 145 Street 
Bridge, Macombs Dam, 207 Street Bridge and the Broadway Bridge would 
need not open for vessel traffic between 6 a.m. and 9 a.m. and between 
5 p.m. and 7 p.m., Monday through Friday, except holidays.
    The draw of the Metro North Park Avenue Bridge at mile 2.1, would 
need not open during the commuter train rush hours from 5 a.m. to 10 
a.m. and from 4 p.m. to 8 p.m., Monday through Friday, except holidays.
    Additionally, the maximum time the railroad bridges across the 
Harlem River may delay bridge openings for the passage of rail traffic 
shall be clearly defined as ten minutes and the language in existing 
regulation allowing public vessels of the United States to be passed 
through each bridge in this section as soon as possible, will be 
removed because it is now required under 33 CFR 117.31, as part of the 
General Requirements for bridges.

Regulatory Analysis

    We developed this proposed 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 proposed 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 proposed rule is not a significant regulatory action. This 
conclusion is based on the fact that vessel traffic will be able to 
obtain bridge openings 24-hours each day instead of the existing seven-
hour window for bridge openings.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 of less than 
50,000.
    The Coast Guard certifies under section 5 U.S.C. 605(b) that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.
    This conclusion is based on the fact that vessel traffic will be 
able to obtain bridge openings 24-hours each day instead of the 
existing seven-hour window.
    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 (Pub. L. 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. 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, Commander (dpb), First Coast 
Guard District, Bridge Branch, One South Street, New York, NY, 10004. 
The telephone number is (212) 668-7165. 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 proposed rule would call 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 proposed 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 or more in any 
one year. Though this proposed rule would not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would 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 proposed 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 proposed 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.

[[Page 66574]]

Energy Effects

    We have analyzed this proposed 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 under the Instruction 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 proposed rule.

List of Subjects in 33 CFR Part 117.

    Bridges.
    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 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. 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 in order 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. The draws 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 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 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: October 28, 2008.
Dale G. Gabel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E8-26669 Filed 11-7-08; 8:45 am]

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