
[Federal Register Volume 88, Number 164 (Friday, August 25, 2023)]
[Rules and Regulations]
[Pages 58102-58104]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18324]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2022-0891]
RIN 1625-AA09


Drawbridge Operation Regulation; Mill Neck Creek, Bayville, NY

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Temporary interim rule and request for comments.

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SUMMARY: The Coast Guard is temporarily modifying the operating 
schedule that governs the Bayville Highway Bridge across the Mill Neck 
Creek, mile 0.1, at Bayville, NY. This action is necessary to allow the 
bridge owner to complete the remaining replacements and repairs.

DATES: This temporary interim rule is effective from August 25, 2023, 
through January 31, 2024.

[[Page 58103]]

    Comments and related material must reach the Coast Guard on or 
before September 25, 2023.

ADDRESSES:  To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov. Type the 
docket number (USCG-2022-0891) in the ``SEARCH'' box and click 
``SEARCH''. In the Document Type column, select ``Supporting & Related 
Material''.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Stephanie E. Lopez, Bridge Management Specialist, First 
Coast Guard District; telephone (212) 514-4335, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
OMB Office of Management and Budget
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary interim rule without 
prior notice and opportunity to comment pursuant to authority under 
section 4(a) of the 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), the Coast 
Guard finds that good cause exists for not publishing a notice of 
proposed rulemaking (NPRM) with respect to this rule because it is 
impracticable. This bridge is operating under single leaf openings and 
will continue to operate in this way until rehabilitation work can be 
completed in January 2024.
    On May 10, 2022, the Coast Guard issued a General Deviation which 
allowed the bridge owner, Nassau County, to deviate from the current 
operating schedule in 33 CFR 117.800 to conduct major mechanical 
rehabilitation of the bridge. Due to delays in procuring materials, the 
project has run past the end date of April 12, 2023, of the General 
Deviation. The bridge cannot be brought back to operating condition 
until the completion of the mechanical rehabilitation. Therefore, there 
is insufficient time to provide a reasonable comment period and then 
consider those comments before issuing the modification.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making it effective in less than 30 days after publication 
in the Federal Register. For reasons presented above, delaying the 
effective date of this rule would be impracticable and contrary to the 
public interest because the bridge is currently incapable of normal 
operations and will not be back into full operation until the 
rehabilitation work can be completed.
    We are soliciting comments on this rulemaking. If the Coast Guard 
determines that changes to the temporary interim rule are necessary, we 
will publish a temporary final rule or other appropriate document.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this temporary interim rule under 
authority in 33 U.S.C. 499. The Coast Guard is modifying the operating 
schedule that governs the Bayville Highway Bridge across the Mill Neck 
Creek, mile 0.1, Bayville, New York. The Bayville highway bridge has a 
vertical clearance, in the closed position, of 9 feet at mean high 
water and unlimited vertical clearance when opened.
    The existing drawbridge regulation, 33 CFR 117.800, states that the 
draw of the Bayville highway bridge, mile 0.1, shall open on signal 
from May 1 through October 31 and at all other times at least two-hour 
advance notice. Nassau County, the bridge owner, has requested to 
operate under single leaf openings so they may continue rehabilitation 
on the bridge while providing minimal impact on marine traffic.

IV. Discussion of the Rule

    The Coast Guard is issuing this rule, which permits a temporary 
deviation from the operating schedule that governs the Bayville Highway 
Bridge across the Mill Neck Creek, mile 0.1, Bayville, New York. The 
rule is necessary to accommodate the completion of the bridge 
mechanical repairs. This rule allows the bridge to operate under single 
leaf openings until January 31, 2024. Vessels that can transit under 
the bridge without an opening may do so.

V. Regulatory Analyses

    We developed this temporary interim 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.

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. This temporary interim rule has not been designated a 
``significant regulatory action,'' under Executive Order 12866, as 
amended by Executive Order 14094 (Modernizing Regulatory Review). 
Accordingly, the temporary interim rule has not been reviewed by the 
Office of Management and Budget (OMB).
    This regulatory action determination is based on the ability that 
vessels can still transit the bridge through a single leaf operation as 
well as all vessels that do not require an opening may transit.

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 certifies under 5 U.S.C. 605(b) that this rule 
would not have a significant economic impact on a substantial number of 
small entities.
    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 would not have a significant economic impact on any 
vessel owner or operator.
    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 explaining 
why you think it qualifies and how and to what degree this rule would 
economically affect it.
    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 
section. 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

[[Page 58104]]

Reduction Act of 1995 (44 U.S.C. 3501-3520.).

D. Federalism and Indian Tribal Governments

    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 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.

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 
Management Directive 023-01, Rev.1, associated implementing 
instructions, and Environmental Planning Policy 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). The 
Coast Guard has 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. Normally such actions are 
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.

VI. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal Decision-
Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2022-0891 in the search box and click 
``Search.'' Next, look for this document in the ``Search Results'' 
column, and click on it. Then click on the ``Comment'' option. If your 
material cannot be submitted using https://www.regulations.gov, contact 
the person in the FOR FURTHER INFORMATION CONTACT section of this 
document for alternate instructions.
    To view documents mentioned in this rule as being available in the 
docket, find the docket as described in the previous paragraph, and 
then select ``Supporting & Related Material'' in the Document Type 
column. Public comments will also be placed in our online docket and 
can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all 
comments received, but we will only post comments that address the 
topic of the rule. We may choose not to post off-topic, inappropriate, 
or duplicate comments that we receive. Additionally, if you click on 
the ``Dockets'' tab and then the rule, you should see a ``Subscribe'' 
option for email alerts. Selecting this option will enable 
notifications when comments are posted, or if/when a final rule is 
published.
    We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have 
provided. For more about privacy and submissions in response to this 
document, see DHS's eRulemaking System of Records notice (85 FR 14226, 
March 11, 2020).

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 DHS Delegation No. 
00170.1, Revision No. 01.3.


Sec.  117.800  [Stayed]

0
2. Stay Sec.  117.800.

0
3. Add Sec.  117.T800 to read as follows:


Sec.  117.T800 Mill  Neck Creek.

    The draw shall operate on single leaf operations from August 25, 
2023, to 11:59 p.m. on January 31, 2024.

    Dated: August 20, 2023.
J.W. Mauger,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2023-18324 Filed 8-24-23; 8:45 am]
BILLING CODE 9110-04-P


