[Federal Register: June 24, 2009 (Volume 74, Number 120)]
[Rules and Regulations]               
[Page 29941-29944]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn09-7]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2009-0202]
RIN 1625-AA09

 
Drawbridge Operation Regulations; Raritan River, Arthur Kill and 
Their Tributaries, Staten Island, NY and Elizabeth, NJ

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is changing the drawbridge operating 
regulations governing the operation of the Arthur Kill (AK) Railroad 
Bridge at mile 11.6, across Arthur Kill and the New Jersey Transit 
(NJTRO) Railroad Bridge at mile 0.5, across the Raritan River. This 
interim rule is intended to better meet the present needs of navigation 
and enhanced needs of rail traffic resulting from the resumption of 
rail traffic across the Arthur Kill (AK) Bridge.

DATES: This interim rule is effective on June 24, 2009, and is 
applicable beginning June 13, 2009. Comments and related material must 
reach the Coast Guard on or before July 24, 2009.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2009-0202 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://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 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, Gary.kassof@uscg.mil. If you have 
questions on viewing 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.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0202), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. You may submit your comments and material online, 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 deliver, 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://ww.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2009-0202'' in the Docket ID box, press Enter, 
and 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 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, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0202 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID 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 20590-0001, 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 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 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 interim rule without prior notice 
and opportunity to comment pursuant to authority under section 4(a) of 
the

[[Page 29942]]

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 because the substantive changes to the 
Drawbridge Operation Regulations implemented under this interim rule 
were previously tested successfully in a series of temporary 
deviations, with request for comment, issued by the Coast Guard. The 
most recent temporary deviation in effect from December 15, 2008 
through June 12, 2009, will expire before a permanent rule change can 
be made utilizing the normal regulatory two step process of publishing 
a notice of proposed rulemaking with request for comment and a final 
rule. We are publishing this interim rule in order to make the 
successfully tested changes to the regulations effective the day after 
the existing temporary deviation expires on June 12, 2009.
    Under 5 U.S.C. 553(d)(3), the Coast Guard 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.

Background and Purpose

    The Arthur Kill (AK) Railroad Bridge at mile 11.6, across Arthur 
Kill, has a vertical clearance of 31 feet at mean high water, and 35 
feet at mean low water in the closed position. The New Jersey Transit 
(NJTRO) Railroad Bridge at mile 0.5, across the Raritan River, has a 
vertical clearance of 8 feet at mean high water and 13 feet at mean low 
water in the closed position.
    The existing drawbridge operating regulations listed at 33 CFR 
117.747, require the draws of all bridges across the Raritan River, 
Arthur Kill and their tributaries to open on signal at all times; 
except that, from 7:30 a.m. to 10 a.m. and from 5 p.m. to 7:30 p.m., 
the draws may be opened for the passage of vessels for periods no 
longer than ten minutes or remain closed for the passage of land 
traffic for no longer than ten minutes.
    The New Jersey Transit Railroad Bridge at mile 0.5, across the 
Raritan River and the Arthur Kill (AK) Railroad Bridge at mile 11.6, 
across Arthur Kill are the only drawbridges operating under this 
regulation at present.
    Rail traffic was suspended for many years on the rail line that 
crosses the Arthur Kill (AK) Bridge. During the time rail traffic was 
suspended across Arthur Kill the Arthur Kill (AK) Railroad Bridge was 
locked in the full open position.
    Several years ago the Arthur Kill (AK) Railroad Bridge was 
mechanically and structurally rehabilitated as part of New York City 
Economic Development Corporation's Full Freight Access Initiative, and 
restored to good operating condition in 2007 enabling restoration of 
rail freight service across the Arthur Kill (AK) Railroad Bridge to the 
Staten Island Landfill facility and the New York Container Terminal, 
formerly known as the Howland Hook Terminal. Rail traffic began 
crossing the re-opened bridge in June of 2007.
    After a short period of time, it became apparent, that the existing 
drawbridge operation regulations, as written, would no longer 
effectively meet the present complex needs of navigation and the 
revitalized volume of rail traffic that would be crossing the Arthur 
Kill (AK) Railroad Bridge.
    The bridge owner, New York City Economic Development Corporation 
(NYCEDC), requested a change to the drawbridge operation regulations to 
help facilitate the resumption of rail traffic crossing the Arthur Kill 
(AK) Railroad Bridge.
    As a result of the above described transition in the needs of 
commerce, the Coast Guard conducted an evaluation, comprised of three 
temporary test deviations with public comment periods, to help 
determine the best drawbridge operation regulations to meet the present 
and future needs of marine and rail transportation.
    Each test deviation modified the previous test as a result of their 
observed effectiveness and comments received from the public.
    After evaluating the results of our third temporary deviation the 
Coast Guard concluded that the operating procedure tested in the third 
deviation was the most reasonable and effective drawbridge operation 
regulation which best addressed the present and future needs of 
navigation and rail traffic.

Discussion of Proposed Rule

    The Coast Guard is changing the drawbridge operation regulations 
listed at 33 CFR 117.747, and also to adding a new section 33 CFR 
117.702, separating the listing for the Raritan River and Arthur Kill 
into two separate sections in the Code of Federal Regulations (CFR), 
since the only two moveable bridges listed under 33 CFR 117.747, the 
Arthur Kill (AK) Railroad Bridge at mile 11.6, across Arthur Kill and 
the New Jersey Transit (NJTRO) Railroad Bridge at mile 0.5, across the 
Raritan River are not located near each other geographically and are on 
different waterways.
    The New Jersey Transit (NJTRO) Railroad Bridge is the only 
drawbridge presently crossing the Raritan River.
    Under 33 CFR 117.747 Raritan River, we will retain the morning and 
afternoon rush hour closures in the revised regulation but will 
eliminate all the redundant and obsolete language, such as the 
reference that public vessels be passed as soon as possible, which is 
now listed under 33 CFR 117.31, in this part. The language stating that 
the owners of each bridge shall maintain tugs at each drawbridge will 
also be removed since it is obsolete language and no longer necessary 
by present standards or for any known reason.
    Under the new section, 33 CFR 117.702 Arthur Kill, we are listing 
the drawbridge operation regulations for the Arthur Kill (AK) Railroad 
Bridge, which was the subject of the three temporary test deviations 
previously discussed.
    This interim rule for the Arthur Kill (AK) Railroad Bridge will 
require the Arthur Kill (AK) Railroad Bridge to remain in the open 
position at all times except during periods when it is closed for the 
passage of rail traffic. Conrail, the bridge operator, will maintain a 
dedicated telephone hot line at (973) 690-2454 for coordination of 
anticipated bridge closures.
    Tide restrained deep draft vessels should call the hot line daily 
to advise of expected times of vessel transit through the bridge. The 
bridge may not close for the passage of trains during any high tide 
period once a deep draft tide restrained vessel notifies the bridge of 
its intent to transit through the bridge. High tide is considered by 
this rule to be from 2 hours before predicted high tide to a half hour 
after predicted high tide at The Battery, New York.
    The bridge operator will issue a manual broadcast notice to 
mariners for a minimum range of 15 miles on VHF-FM channel 13 and 16, 
of its intent to close the bridge for a period of up to thirty minutes. 
The broadcast will occur at 90 minutes prior and again at 75 minutes 
prior to provide notice of a bridge closure.
    Beginning at 60 minutes prior to a bridge closure automated or 
manual broadcasts will be repeated at 15-minute intervals and at 10 and 
5 minutes prior to the bridge closure.
    Two consecutive bridge closures are authorized each day to allow 
multiple train movements across the bridge. The closures will be 
fifteen minutes in duration and separated by a thirty-minute bridge 
open period.

[[Page 29943]]

    Vessels will be required to plan their transits around the 
announced closure periods; however, a request for up to a 30-minute 
delay in the bridge closures to allow navigation to meet tide or 
current requirements would be granted if requested within 30 minutes 
after the initial broadcast notice to close the bridge is given. 
Requests received after the initial 30 minutes will not be granted.
    In the event of bridge operational failure, the bridge operator 
must notify the Coast Guard Captain of the Port New York immediately 
and must dispatch a repair crew to the bridge to be on scene at the 
bridge no later than 45 minutes after the bridge fails to operate. A 
repair crew must remain at the bridge until the bridge has been 
restored to normal operations or the bridge must be raised and locked 
in the fully open position.

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, 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 interim rule is not a significant regulatory action. This 
conclusion is based upon the fact that vessel and rail traffic will 
both be able to transit over and through the Arthur Kill (AK) Railroad 
Bridge under a balanced and reasonable schedule.

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 conclusion is based on the fact that marine and rail traffic 
will both be able to transit over and through the Arthur Kill (AK) 
Railroad Bridge under a balanced and reasonable schedule.
    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 interim rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule will 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 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 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 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

[[Page 29944]]

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 023-01, 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 concluded that this action is one of a category of actions which 
do not individually or cumulatively have a significant effect on the 
human environment. This rule is categorically excluded, under figure 2-
1, paragraph (32)(e), of the Instruction. Under paragraph (32)(e), of 
the Instruction, neither an environmental analysis checklist nor a 
categorical exclusion determination is required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.

0
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. Add a new section 33 CFR 117.702 to read as follows:


Sec.  117.702  Arthur Kill

    (a) The draw of the Arthur Kill (AK) Railroad Bridge shall be 
maintained in the full open position for navigation at all times, 
except during periods when it is closed for the passage of rail 
traffic.
    (b) The bridge owner/operator shall maintain a dedicated telephone 
hot line for vessel operators to call the bridge in advance to 
coordinate anticipated bridge closures. The telephone hot line number 
shall be posted on signs at the bridge clearly visible from both the up 
and downstream sides of the bridge.
    (c) Tide restrained deep draft vessels shall notify the bridge 
operator, daily, of their expected times of vessel transits through the 
bridge, by calling the designated telephone hot line.
    (d) The bridge shall not be closed for the passage of rail traffic 
during any predicted high tide period if a tide restrained deep draft 
vessel has provided the bridge operator with an advance notice of their 
intent to transit through the bridge. For the purposes of this 
regulation, the predicted high tide period shall be considered to be 
from two-hours before each predicted high tide to a half-hour after 
each predicted high tide taken at the Battery, New York.
    (e) The bridge operator shall issue a manual broadcast notice to 
mariners of the intent to close the bridge for a period of up to thirty 
minutes for the passage of rail traffic, on VHF-FM channels 13 and 16 
(minimum range of 15 miles) at 90-minutes before and again at 75-
minutes before each bridge closure.
    (f) Beginning at 60 minutes prior to each bridge closure, automated 
or manual broadcast notice to mariners must be repeated at 15 minute 
intervals and again at 10 and 5 minutes prior to each bridge closure 
and once again as the bridge begins to close and appropriate sound 
signal given.
    (g) Two fifteen minute bridge closures may be provided each day for 
the passage of multiple rail traffic movements across the bridge. Each 
fifteen minute bridge closure shall be separated by at least a thirty 
minute period when the bridge is returned to and remains in the full 
open position. Notification of the two fifteen minute closures shall 
follow the same procedures outlined in paragraphs e and f above.
    (h) A vessel operator may request up to a 30 minute delay for any 
bridge closure in order to allow vessel traffic to meet tide or current 
requirements; however, the request to delay the bridge closure must be 
made within 30 minutes following the initial broadcast for the bridge 
closure. Requests received after the initial 30 minute broadcast will 
not be granted.
    (i) In the event of a bridge operational failure, the bridge 
operator shall immediately notify the Coast Guard Captain of the Port 
New York. The bridge owner/operator must provide and dispatch a bridge 
repair crew to be on scene at the bridge no later than 45 minutes after 
the bridge fails to operate. A repair crew must remain at the bridge at 
all times until the bridge has been fully restored to normal operations 
or the bridge must be raised and locked in the fully open position.

0
3. Section 33 CFR 117.747 is revised to read as follows:


Sec.  117.747  Raritan River

    (a) The draw of New Jersey Transit Rail Operations Railroad Bridge 
at mile 0.5 shall open on signal; except that, from 6 a.m. to 9:30 a.m. 
and 4:30 p.m. to 7:30 p.m., Monday through Friday, except holidays, the 
bridge need not open.
    (b) The bridge owner shall provide and keep in good legible 
condition two clearance gauges with figures not less than 12 inches 
high designed, installed and maintained according to the provisions of 
Sec.  118.160 of this chapter.
    (c) Trains and locomotives shall be controlled so that any delay in 
opening the draw span shall not exceed ten minutes. However, if a train 
moving toward the bridge has crossed the home signal for the bridge 
before the signal requesting opening of the bridge is given, the train 
may continue across the bridge and must clear the bridge interlocks 
before the bridge may be opened.

    Dated: May 28, 2009.
Dale G. Gabel,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. E9-14755 Filed 6-23-09; 8:45 am]

BILLING CODE 4910-15-P