[Federal Register Volume 85, Number 32 (Tuesday, February 18, 2020)]
[Rules and Regulations]
[Pages 8747-8749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02973]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2019-0086]
RIN 1625-AA09


Drawbridge Operation Regulation; Hackensack River, Little Snake 
Hill, NJ

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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

SUMMARY: The Coast Guard is modifying the operating schedule that 
governs the Amtrak Portal Bridge across the Hackensack River, mile 5.0 
at Little Snake Hill, New Jersey. The bridge owner, National Railroad 
Passenger Corporation (Amtrak), submitted a request to require a 
greater advance notice for bridge openings, to increase the time 
periods the bridge remains in the closed position, and to reduce bridge 
openings during the morning and evening commuter rush hours. It is 
expected that this change to the regulations will better serve the 
needs of the community while continuing to meet the reasonable needs of 
navigation.

DATES: This rule is effective March 19, 2020.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov. Type USCG-
2019-0086 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Ms. Judy Leung-Yee, First Coast Guard District, Project 
Officer, telephone 212-514-4336, email Judy.K.Leung-Yee@uscg.mil.

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security

[[Page 8748]]

FR Federal Register
OMB Office of Management and Budget
NPRM Notice of Proposed Rulemaking (Advance, Supplemental)
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On March 15, 2019, the Coast Guard also published a temporary 
deviation with a request for comments (84 FR 9459), to test a proposed 
schedule. Five comments were received during the test period and those 
comments were addressed in the aforementioned NPRM.
    On October 7, 2019, the Coast Guard published a notice of proposed 
rulemaking entitled ``Drawbridge Operation Regulation; Hackensack 
River, Little Snake Hill, NJ,'' in the Federal Register (84 FR 53350). 
In the NPRM, incorrect number of openings was provided. The correct 
number is provided below in Section III. We received three comments in 
response to the NPRM.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under the authority of 33 
U.S.C. 499. The Amtrak Portal Bridge at mile 5.0 over the Hackensack 
River at Little Snake Hill, New Jersey, has a vertical clearance of 23 
feet at mean high water and 28 feet at mean low water. Horizontal 
clearance is approximately 99 feet. The waterway users include 
recreational and commercial vessels, including tugboat/barge 
combinations.
    The existing drawbridge operating regulations are listed at 33 CFR 
117.723(e). In December of 2018, the owner of the bridge, National 
Railroad Passenger Corporation, requested a change to the drawbridge 
operation regulations because the volume of train traffic across the 
bridge during the peak commuting hours makes bridge openings 
impractical under the current schedule. As a result, bridge openings 
that occur during peak commuter train hours cause significant delays to 
commuter rail traffic. The owner proposed that the bridge opening 
schedule be revised so the bridge need not open for the passage of 
vessel traffic, Monday through Friday, from 5 a.m. to 10 a.m. and from 
3 p.m. to 8 p.m. At all other times the bridge shall open on signal if 
at least 24 hour notice is given.
    The Coast Guard reached out to the maritime stakeholders with the 
requested change proposed by the bridge owner. A stakeholder provided a 
general objection to the change in the original request.
    In the NPRM, the Coast Guard mistakenly reported that there were 
three requests to open from March 14, 2019 through July 12, 2019. There 
were actually only two requests to open during this period.

IV. Discussion of Comments, Changes and the Final Rule

    The Coast Guard provided 60 days for comment regarding this rule 
and three comments in the docket were received, with one comment 
received after the December 6, 2019, closing date. Two of comments 
supported the rulemaking but recommended greater advance notice (24 & 
48 hours, respectively), increasing each peak commuting hour time 
periods by one hour and completely banning bridge openings during these 
commuter time periods. A third commenter recommended a four-hour 
advance notice for tide-restricted vessels. In addition, one commenter 
recommended changing the language from ``need not open'' to ``shall not 
open.'' The Coast Guard disagrees with these suggestions. As a result 
of the aforementioned reach out to maritime stakeholders, and in 
agreement with Amtrak, all concerned agreed a two-hour advance notice 
would be sufficient time for the bridge owner to assemble a team of 
technicians for the scheduled opening and address any mechanical and 
electrical issues that might arise. There is active commercial and 
recreational traffic on this waterway with the bridge logs indicating 
two requests to open from October 7, 2019, through December 6, 2019, 
during the NPRM comment period; therefore any permanent closure of the 
bridge is not an option. If the word ``need'' be replaced with 
``shall,'' this would make passage prohibitive, due to the safety of 
navigation for vessels affected by tide influence and the 
permissibility of emergency vessels or vessels in an emergency 
situation (33 CFR 117.31) to pass. One commenter recommended 
permanently leaving the bridge closed with an agreement by Amtrak to 
replace it with a new fixed bridge with a vertical clearance of 25 
feet. A Coast Guard Bridge Permit was issued to Amtrak approving a new 
fixed bridge with 50ft of vertical clearance.
    There are no changes in the regulatory text of this rule from the 
proposed rule in the NPRM.
    The final rule provides the draw need not open for the passage of 
vessel traffic from 5 a.m. to 10 a.m. and from 3 p.m. to 8 p.m. 
Additional bridge openings shall be provided for tide restricted 
commercial vessels between 7 a.m. and 8 a.m. and between 5 p.m. and 6 
p.m., if at least a two-hour advance notice is given by calling the 
number posted at the bridge. At all other times the bridge shall open 
on signal if at least two-hour advance notice is given. It is the Coast 
Guard's opinion that this rule meets the reasonable needs of marine and 
rail traffic.

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, and we 
discuss First Amendment rights of protesters.

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. Executive Order 13771 directs agencies to control 
regulatory costs through a budgeting process. This rule has not been 
designated a ``significant regulatory action,'' under Executive Order 
12866. Accordingly, it has not been reviewed by the Office of 
Management and Budget (OMB) and pursuant to OMB guidance it is exempt 
from the requirements of Executive Order 13771.
    The Coast Guard believes this rule is not a significant regulatory 
action. The bridge will still open for all vessel traffic after a two-
hour advance notice is given, except during the morning and afternoon 
commuter rush hour periods, where a one-hour time period will allow 
passage of commercial vessels. The vertical clearance under the bridge 
in the closed position is relatively high enough to accommodate most 
vessel traffic during the time periods the draw is closed during the 
morning and evening commuter rush hours. We believe that this change to 
the drawbridge operation regulations at 33 CFR 117.723(e) will meet the 
reasonable needs of navigation.

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 received no comment from the Small Business 
Administration on this rule. The Coast Guard certifies under 5 U.S.C. 
605(b) that this rule will not have a significant economic impact

[[Page 8749]]

on a substantial number of small entities.
    The bridge provides 23 feet of vertical clearance at mean high 
water that should accommodate all the present vessel traffic except 
deep draft vessels. The bridge will continue to open on signal for any 
vessel provided at least two-hour advance notice is given. 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, 
above.
    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. If 
you believe this rule has implications for federalism or Indian tribes, 
please call or email the person listed in the FOR FURTHER INFORMATION 
CONTACT section.

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 
Directive 023-01, Rev. 1, associated implementing instructions, and 
Environmental Planning 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) andhave 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. This action is 
categorically excluded from further review, under paragraph L49, of 
Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning 
Implementation Procedures.
    Neither a Record of Environmental Consideration nor a Memorandum 
for the Record are required for this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

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; and Department of 
Homeland Security Delegation No. 0170.1.

0
2. Revise Sec.  117.723(e) to read as follows:


Sec.  117.723  Hackensack River.

* * * * *
    (e) The draw of the Amtrak Portal Bridge, mile 5.0, at Little Snake 
Hill, New Jersey, need not open for the passage of vessel traffic from 
5 a.m. to 10 a.m. and from 3 p.m. to 8 p.m. Additional bridge openings 
shall be provided for tide restricted commercial vessels between 7 a.m. 
and 8 a.m. and between 5 p.m. and 6 p.m., if at least a two-hour 
advance notice is given by calling the number posted at the bridge. At 
all other times the bridge shall open on signal if at least two-hour 
advance notice is given.
* * * * *

    Dated: January 30, 2020.
A.J. Tiongson,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2020-02973 Filed 2-14-20; 8:45 am]
 BILLING CODE 9110-04-P


