[Federal Register Volume 81, Number 64 (Monday, April 4, 2016)]
[Proposed Rules]
[Pages 19094-19097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07662]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG-2014-1057]
RIN 1625-AA09
Drawbridge Operation Regulation; Norwalk River, Norwalk, CT
AGENCY: Coast Guard, DHS.
ACTION: Supplemental Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to modify the operating schedule that
governs the Metro-North WALK Bridge across the Norwalk River, mile 0.1,
at Norwalk, Connecticut. The bridge owner submitted a request to
require a greater advance notice for bridge openings and to increase
time periods the bridge remains in the closed position during the
weekday morning and evening rush hours. It is expected that this change
to the regulations will create efficiency in drawbridge operations
while continuing to meet the reasonable needs of navigation.
[[Page 19095]]
DATES: Comments and related material must reach the Coast Guard on or
before May 4, 2016.
ADDRESSES: You may submit comments identified by docket number USCG-
2014-1057 using Federal eRulemaking Portal at http://www.regulations.gov.
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
supplemental proposed rule, call or email Mr. Chris Bisignano, Project
officer, First Coast Guard District, telephone 212-514-4331, email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
NPRM Notice of proposed rulemaking
SNPRM Supplemental notice of proposed rulemaking
Pub. L. Public Law
Sec. Section
U.S.C. United States Code
II. Background, Purpose, and Legal Basis
On August 31, 2015, we published a notice of proposed rulemaking
(NPRM) entitled, Drawbridge Operation Regulation; Norwalk River,
Norwalk, CT, in the Federal Register (80 FR 52423), soliciting comments
on the proposed rule through October 30, 2015. In addition, Commander
(dpb), First Coast Guard District published Public Notice 1-149 dated
September 21, 2015. We received four submissions on the proposed rule,
which will be addressed in Section III, below.
The Metro-North WALK Bridge, mile 0.1, across the Norwalk River at
Norwalk, Connecticut, has a vertical clearance in the closed position
of 16 feet at mean high water and 23 feet at mean low water. The
drawbridge operation regulations are listed at 33 CFR 117.217(b). The
waterway users are seasonal recreational vessels and commercial vessels
of various sizes.
The owner of the bridge, Connecticut Department of Transportation
(CDOT), 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 NPRM published in August 2015 would have permanently changed
the operating hours during the Monday-Friday, excluding holidays,
timeframes to operate as follows:
(1) The draw shall open on signal between 4:30 a.m. and 9 p.m.
after at least a two hour advance notice is given; except that, from
4:30 a.m. through 9:30 a.m. and from 4 p.m. through 9 p.m., Monday
through Friday excluding holidays, the draw need not open for the
passage of vessel traffic unless an emergency exists.
(2) From 9 p.m. through 4:30 a.m. the draw shall open on signal
after at least a four hour advance notice is given.
In response to the comments received and after further review of
bridge logs and train schedules, the Coast Guard now proposes to modify
the NPRM by adjusting when the draw will be available to open Monday
through Friday, excluding holidays as follows:
(1) The draw shall open on signal between 4:30 a.m. and 9 p.m.
after at least a two hour advance notice is given; except that, from
5:45 a.m. through 9:45 a.m. and from 4 p.m. through 8 p.m., Monday
through Friday excluding holidays, the draw need not open for the
passage of vessel traffic unless an emergency exists.
(2) From 9 p.m. through 4:30 a.m. the draw shall open on signal
after at least a four hour advance notice is given.
III. Discussion of Comments and Change
We received four submissions commenting on the NPRM. Three
submissions opposed and one submission supported the proposed changes.
Some submissions commented on multiple aspects of the proposed
regulation. The Coast Guard considered all comments and the responses
from CDOT in creation of this supplemental alternative proposal.
One comment suggested a meeting to deliberate the changes proposed
in this rulemaking. The Coast Guard met with all parties that expressed
interest in this rulemaking on May 11, 2015. The Coast Guard does not
see a need to hold additional public meetings at this time.
One comment requested that any modification to the existing rule
should not be extended past the initiation of construction of a new
replacement bridge. The Coast Guard disagrees. A replacement bridge is
only in the planning stage at CDOT. Design and construction of a
replacement project for a bridge of this scale typically takes several
years. As the timeline of a potential bridge replacement is uncertain,
the Coast Guard cannot consider it within this rulemaking.
One comment suggested that any change in the operating regulations
for the Metro-North WALK bridge should take into consideration the
operating rule of the downstream SR136 (Washington Street) Bridge to
facilitate the movement of waterborne commerce. The Coast Guard agrees
that the operating schedule of the SR136 Bridge is relevant and
considered the operating schedule for SR136 when drafting this
supplemental rulemaking.
One comment recommended that the Coast Guard consider revising the
4:30 a.m. to 9:30 a.m. opening schedule, Monday through Friday, as only
two trains cross the bridge from 9 a.m. to 9:30 a.m. In response to
this comment, the Coast Guard expanded its analysis of train traffic
densities; this analysis contributed to the adjustments made in this
supplemental rule compared to the proposed rule. These adjustments
shorten from five to four hours the a.m. and p.m. periods provided for
in the ``except that'' language in paragraph (b)(1) of the regulation,
but also shifts the a.m. period to end later in the day.
Two commenters noted that the added restrictions to opening times
of the bridge would negatively impact aggregate deliveries and require
alternative deliveries by truck, thereby stressing the road system in
the area. Even under the more restrictive test deviation conducted from
January 1, 2015, to June 28, 2015, as discussed in the NPRM, Metro-
North was able to accommodate all of the requests for bridge openings.
Further, review of the bridge logs revealed that in 2014, prior to the
aforementioned test deviation and NPRM, as compared to 2015 during the
test deviation and the NPRM, the difference in the number of requested
bridge openings was negligible. The Coast Guard also reviewed tidal
data for this area in consideration of the types of commercial traffic
known to use this waterway. The combination of these factors
contributed to the adjustments made in this supplemental rule compared
to the proposed rule.
The Coast Guard believes the supplemental changes balance the needs
of rail and vessel traffic. The proposed changes enhance rail traffic
without significantly affecting vessel traffic.
In review of the proposed rule and stakeholder comments, the Coast
Guard noted that the term ``emergency,'' as used within the existing
and proposed regulation, was not specifically discussed. The term and
associated required actions by the bridge owner are as defined within
33 CFR 117.31. This proposed rule makes no changes to regulations under
that section. However, the Coast Guard notes that there may be
[[Page 19096]]
instances in which emergent conditions beyond those explicitly listed
therein could merit a special opening of the bridge for draft
constrained vessels when tides and the bridge schedule interfere. For
example, if the inventory of seasonally critical home heating oil or
road salt at a facility upstream of the bridge that serves as the
primary supply within the local area is or will soon be exhausted, and
a commercial vessel transit to replenish inventory must occur during an
allowed-closed period of the bridge, this condition may also reasonably
be expected to require a special opening of the bridge to support
public safety. In such cases, the Coast Guard expects that the bridge
owner, and involved local municipality or commercial entity can make
special arrangements as needed.
IV. Discussion of Proposed Rule
Based on further review of bridge logs and scheduled train
crossings, the Coast Guard now proposes to modify the NPRM,
specifically changing the ``except that'' language in paragraph (b)(1)
of the regulation as indicated above in Section II. This slight
modification would better serve the freedom of navigation without
significantly impacted rail traffic.
V. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and Executive Orders related to rulemaking. Below we summarize our
analyses based on these statutes and Executive Orders and discuss First
Amendment rights of protestors.
1. 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 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This proposed rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, the proposed rule has not been reviewed by the
Office of Management and Budget.
This regulatory action determination is based on the fact that
vessels can still transit the bridge given advanced notice. 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.
2. 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
proposed 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 proposed 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 (see
ADDRESSES) 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 proposed 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. 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.
3. 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.).
4. 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 proposed 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 proposed 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. If
you believe this proposed rule has implications for federalism or
Indian tribes, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section above.
5. 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 proposed rule will not
result in such an expenditure, we do discuss the effects of this
proposed rule elsewhere in this preamble.
6. Environment
We have analyzed this proposed 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 made a preliminary determination 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 proposed rule simply
promulgates the operating regulations or procedures for drawbridges.
Normally such actions are categorically excluded from further review,
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. We seek any comments or
information that may lead to the discovery of a significant
environmental impact from this proposed rule.
7. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
[[Page 19097]]
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.
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 eRulemaking
Portal at http://www.regulations.gov. If your material cannot be
submitted using http://www.regulations.gov, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
We accept anonymous comments. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided. For more about privacy and the
docket, you may review a Privacy Act notice regarding the Federal
Docket Management System in the March 24, 2005, issue of the Federal
Register (70 FR 15086).
Documents mentioned in this notice, and all public comments, are in
our online docket at http://www.regulations.gov and can be viewed by
following that Web site's instructions. Additionally, if you go to the
online docket and sign up for email alerts, you will be notified when
comments are posted or a final rule is published.
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
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. In Sec. 117.217, revise paragraph (b) to read as follows:
Sec. 117.217 Norwalk River.
* * * * *
(b) The draw of the Metro-North ``WALK'' Bridge, mile 0.1, at
Norwalk, shall operate as follows:
(1) The draw shall open on signal between 4:30 a.m. and 9 p.m.
after at least a two hour advance notice is given; except that, from
5:45 a.m. through 9:45 a.m. and from 4 p.m. through 8 p.m., Monday
through Friday excluding holidays, the draw need not open for the
passage of vessel traffic unless an emergency exists.
(2) From 9 p.m. through 4:30 a.m. the draw shall open on signal
after at least a four hour advance notice is given.
(3) A delay in opening the draw not to exceed 10 minutes may occur
when a train scheduled to cross the bridge without stopping has entered
the drawbridge lock.
(4) Requests for bridge openings may be made by calling the bridge
via marine radio VHF FM Channel 13 or the telephone number posted at
the bridge.
Dated: March 24, 2016.
L.L. Fagan,
Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District.
[FR Doc. 2016-07662 Filed 4-1-16; 8:45 am]
BILLING CODE 9110-04-P