
[Federal Register Volume 76, Number 147 (Monday, August 1, 2011)]
[Rules and Regulations]
[Pages 45690-45693]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19322]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2010-1117]
RIN 1625-AA09


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard has changed the drawbridge operation 
regulations that govern the operation of the Arthur Kill (AK) Railroad 
Bridge at mile 11.6, across Arthur Kill between Staten Island, New York 
and Elizabeth, New Jersey. This final rule provides relief to the 
bridge owner from crewing their bridge by allowing the bridge to be

[[Page 45691]]

operated from a remote location while continuing to meet the present 
and future needs of navigation.

DATES: This rule is effective August 31, 2011.

ADDRESSES: Comments and related materials received from the public, as 
well as documents mentioned in this preamble as being available in the 
docket, are part of docket USCG-2010-1117 and are available online by 
going to http://www.regulations.gov, inserting USCG-2010-1117 in the 
``Keyword'' box, and then clicking ``Search.'' This material is also 
available for inspection or copying at the 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, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or e-mail Mr. Joe Arca, Project Officer, First Coast Guard 
District Bridge Branch, 212-668-7165, joe.m.arca@uscg.mil. If you have 
questions on viewing the docket, call Renee V. Wright, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On March 25, 2011, we published a notice of proposed rulemaking 
(NPRM) entitled Drawbridge Operation Regulations Raritan River, Arthur 
Kill and their tributaries, in the Federal Register (76 FR 16715). We 
received one comment in response to the proposed rule. No public 
meeting was requested, and none was held.

Basis 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 existing drawbridge 
operating regulations are listed at 33 CFR 117.702.
    Beginning in 2009, Consolidated Rail Corporation (Conrail) 
conducted a year of successful remote operation tests of the AK 
Railroad Bridge without any objections from marine users. A draw 
operator was on scene at all times to ensure compliance with drawbridge 
operating regulations cited above. In September 2010, Conrail formally 
requested that the drawbridge operating regulation be revised to permit 
remote operation of the AK Railroad Bridge.
    Conrail, on October 20, 2010 and at the request of the Coast Guard, 
presented its proposal to remotely operate the bridge to the New York 
Harbor Operations Committee. Discussions between Conrail, the Coast 
Guard, and the New York Harbor Operations Committee ensued with no 
objections to the remote operation raised by the committee members.

Discussion of Comments and Changes

    The Coast Guard received one comment in response to the notice of 
proposed rulemaking.
    A comment letter was received from the Tug and Barge Committee of 
the Port of New York/New Jersey in opposition to operating the AK 
Bridge from a remote location. They stated that without bridge control 
and crewing on scene, the safe transport of products by the marine 
industry would be at risk if the remote control malfunctioned.
    The AK Bridge is normally maintained in the full open position 
except for the passage of rail traffic which occurs approximately four 
times each day.
    Should the remote operation fail a repair crew will be dispatched 
to the bridge within 45 minutes of the reported failure to repair the 
bridge.
    Prior to publishing the notice of proposed rulemaking, the Coast 
Guard had discussions with the New York Harbor Operations Committee and 
Conrail. No objections to the remote operation were voiced at that 
time.
    Subsequently, the remote operation was then successfully tested for 
a year with a draw tender present at all times. During the one year 
test period there were no failures or complaints received from 
mariners.
    Based on the successful testing of the remote operation system, the 
Coast Guard believes that operating the AK Bridge remotely should 
safely meet the present and future needs of navigation. Should the 
remote operation fail a repair crew will be dispatched to the bridge 
within 45 minutes of the reported failure to repair the bridge.
    As a result, no changes have been made to this final rule as far as 
the remote operation is concerned.
    In drafting this final rule we noted a typographical error that was 
made in our notice of proposed rulemaking in the Basis and Background 
Section. We stated that the existing regulations were listed at 33 CFR 
117.72, which was in error. The existing regulations are listed at 33 
CFR 117.702. We corrected that error in this final rule.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
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 that Order. The Office of 
Management and Budget has not reviewed it under that Order. This 
conclusion is based on the fact that the bridge will continue to 
operate according to the existing regulations except that it will be 
controlled from either a remote location or locally.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
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 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. This action will not have a significant economic impact on a 
substantial number of small entities for the following reason. The 
bridge will continue to operate according to existing regulations 
except that it will be controlled from either a remote location or 
locally.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM 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.

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

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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 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 Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, 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 related to the promulgation of operating 
regulations or procedures for drawbridges and therefore is 
categorically excluded, under figure 2-1, paragraph (32)(e), of the 
Instruction. 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 amends 
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; Department of Homeland 
Security Delegation No. 0170.1.

0
2. Revise Sec.  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 constrained 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 constrained 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 30 
minutes for the passage of rail traffic, on VHF-FM channels 13 and 16 
(minimum range of 15 miles) 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, at which point the 
appropriate sound signal will be given.
    (g) Two 15 minute bridge closures may be provided each day for the 
passage of multiple rail traffic movements across the bridge. Each 15 
minute bridge closure shall be separated by at least a 30 minute period 
when the bridge is returned to and remains in the full open position. 
Notification of the two 15 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

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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 on scene during 
the operational failure until the bridge has been fully restored to 
normal operations or until the bridge is raised and locked in the fully 
open position.
    (j) When the bridge is not tended locally it must be operated from 
a remote location. A sufficient number of closed circuit TV cameras, 
approved by the Coast Guard, shall be operated and maintained at the 
bridge site to enable the remotely located bridge tender to have full 
view of both river traffic and the bridge.
    (k) VHF-FM channels 13 and 16 shall be maintained and monitored to 
facilitate communication in both the remote and local control 
locations. The bridge shall also be equipped with directional 
microphones and horns to receive and deliver signals to vessels.
    (l) Whenever the remote control system equipment is disabled or 
fails to operate for any reason, the bridge operator shall immediately 
notify the Captain of the Port New York. The bridge shall be physically 
tended and operated by local control as soon as possible, but no more 
than 45 minutes after malfunction or disability of the remote system.
    (m) Mechanical bypass and override capability of the remote 
operation system shall be provided and maintained at all times.

    Dated: July 6, 2011.
James B. McPherson,
Captain, U.S. Coast Guard, Acting Commander, First Coast Guard 
District.
[FR Doc. 2011-19322 Filed 7-29-11; 8:45 am]
BILLING CODE 9110-04-P


