Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Rules and Regulations 49323 

(iii) For purposes of paragraph (a)(1)(i) 

of this section, the term gross income, as 

it relates to any income other than from 

the sale of goods or services in a trade 

or business, has the same meaning as 

provided under section 61(a), and 

includes the total of the amounts 

received or accrued, to the extent 

required to be shown on the return. In 

the case of amounts received or accrued 

that relate to the disposition of property, 

and except as provided in paragraph 

(a)(1)(ii) of this section, gross income 

means the excess of the amount realized 

from the disposition of the property 

over the unrecovered cost or other basis 

of the property. Consequently, except as 

provided in paragraph (a)(1)(ii) of this 

section, an understated amount of gross 

income resulting from an overstatement 

of unrecovered cost or other basis 

constitutes an omission from gross 

income for purposes of section 

6501(e)(1)(A). 

(iv) An amount shall not be 

considered as omitted from gross 

income if information sufficient to 

apprise the Commissioner of the nature 

and amount of the item is disclosed in 

the return, including any schedule or 

statement attached to the return. 

(2) [Reserved] 

(b) Effective/applicability date. The 

rules of this section apply to taxable 

years with respect to which the 

applicable period for assessing tax did 

not expire before September 24, 2009. 

(c) Expiration date. The applicability 

of this section expires on or before 

September 24, 2012. 

Linda E. Stiff, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: September 23, 2009. 

Michael Mundaca, 

Acting Assistant Secretary of the Treasury 

(Tax Policy). 

[FR Doc. E9–23426 Filed 9–24–09; 4:15 pm] 

BILLING CODE 4830–01–P 

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: Final rule. 

SUMMARY: The Coast Guard changed 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 final 

rule is expected 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 rule is effective October 28, 

2009. 

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–2009– 

0202) and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2009–0202 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– 

0001, 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. Gary Kassof, Project Officer, 

First Coast Guard District, telephone 

212–668–7165,e-mail 

gary.kassof@uscg.mil. If you have any 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On June 24, 2009, we published an 

interim rule entitled ‘‘Drawbridge 

Operation Regulations’’; Raritan River, 

Arthur Kill and their tributaries, Staten 

Island and Elizabeth, New Jersey, in the 

Federal Register (74 FR 29941). We 

received no comments on the interim 

rule. No public meeting was requested, 

and none was held. 

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 previous drawbridge operating 

regulations listed at 33 CFR 117.747, 

required 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 

were the only drawbridges operating 

under this regulation. 

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 then existing 

drawbridge operation regulations, 

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 and an interim rule, 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 


CPrice-Sewell on DSKGBLS3C1PROD with RULES
49324 Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Rules and Regulations 

was the most reasonable and effective 

drawbridge operation regulation which 

best addressed the present and future 

needs of navigation and rail traffic. 

We then implemented an interim rule 

with request for comment, in order to 

allow the operating procedures tested by 

our third deviation to become effective 

the day after that third deviation ended. 

Discussion of Comments and Changes 

The Coast Guard received no 

comment letters in response to the 

interim rule. As a result, no changes 

have been made to this final rule. 

Regulatory Analysis 

We developed this 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 conclusion is based on the fact 

that this final 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 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 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 conclusion is based on the fact 

that the commercial marine traffic and 

rail traffic will both be able to transit 

over and through the Arthur (AK) 

Railroad Bridge under a balanced and 

reasonable schedule. 

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. 

No small entities requested Coast 

Guard assistance and none was given. 

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. 

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 

does not concern an environmental risk 

to health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This final rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have 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. 


CPrice-Sewell on DSKGBLS3C1PROD with RULES
Federal Register / Vol. 74, No. 186 / Monday, September 28, 2009 / Rules and Regulations 49325 

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 does 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 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 

■ 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. 

■ 2. Add a new § 117.702 to read as 

follows: 

§ 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) 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. 

■ 3. Section 117.747 is revised to read 

as follows: 

§ 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 § 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: September 8, 2009. 

Joseph L. Nimmich, 

Rear Admiral, U.S. Coast Guard, Commander, 

First Coast Guard District. 

[FR Doc. E9–23278 Filed 9–25–09; 8:45 am] 

BILLING CODE 4910 P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2009–0864] 

Drawbridge Operation Regulation; 

Cape Fear River and Northeast Cape 

Fear River, Wilmington, NC 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations. 

SUMMARY: The Commander Fifth Coast 

Guard District has issued a temporary 

deviation from the regulations 

governing the operation of the Cape Fear 

River Memorial Bridge at mile 26.8 and 

the Isabel S. Holmes Bridge at mile 1.0 

across Northeast Cape Fear River at 

Wilmington NC. The deviation is 

necessary to accommodate a road race. 

This deviation allows the bridges to 

remain in the closed position to vessels. 

DATES: This deviation is effective from 

8 a.m. to 10 a.m. on October 4, 2009. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2009– 

0864 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2009–0864 in the ‘‘Keyword’’ 

box and then clicking ‘‘Search.’’ They 

are 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, 


CPrice-Sewell on DSKGBLS3C1PROD with RULES