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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 117 
          - [CGD01-05-096] 
          - RIN 1625-AA09 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Notice of proposed rulemaking. 

# SUMMARY:

The Coast Guard proposes to change the drawbridge operating regulations governing the operation of the Route 35 Bridge, mile 0.0, across Cheesequake Creek at South Amboy, New Jersey. This proposed rule would allow the bridge owner to require a two hour notice from 11 p.m. to 7 a.m., year round and all day from December 1 through March 31. This rule is expected to meet the reasonable needs of navigation. 

# DATES:

Comments must reach the Coast Guard on or before January 23, 2006. 

# ADDRESSES:

You may mail comments to Commander (obr), First Coast Guard District Bridge Branch, One South Street, Battery Park Building, New York, NY 10004, or deliver them to the same address between 7 a.m. and 3 p.m., Monday through Friday, except, Federal holidays. The telephone number is (212) 668-7165. The First Coast Guard District, Bridge Branch, maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the First Coast Guard District, Bridge Branch, 7 a.m. to 3 p.m., Monday through Friday, except Federal holidays. 

# FOR FURTHER INFORMATION CONTACT:

Mr. Joe Arca, Project Officer, First Coast Guard District, (212) 668-7165. 

# SUPPLEMENTARY INFORMATION:

## Request for Comments 

                    We encourage you to participate in this rulemaking by submitting comments or related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-05-096), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8                    1/2                     by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.                 

## Public Meeting 

                    We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, at the address under                     **ADDRESSES**                     explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the                     **Federal Register**                    .                 

## Background and Purpose 

The Route 35 Bridge has a vertical clearance of 25 feet at mean high water and 30 feet at mean low water in the closed position. The existing drawbridge operation regulations are listed at 33 CFR 117.709(a). 

The existing regulations require the bridge to operate as follows: 

From May 1 through October 31, from 7 a.m. to 8 p.m., the draw need only open on the hour. From 8 p.m. to 11 p.m. the draw shall open on signal. From 11 p.m. to 7 a.m. the draw shall open after at least a four hour notice is given. From November 1 through April 30 the draw shall open on signal after at least a four hour notice is given. 

On April 20, 2005 the Coast Guard published a final rule changing the drawbridge operation regulations for the Route 35 Bridge, to the current operation schedule outlined above.

Subsequent to the publication of that final rule (70 FR 20464), the bridge owner and the Coast Guard were contacted by several mariners and a local public official advising that the four hour advance notice required by the new rule was problematic and that consideration be given to revising the rule. 

After conducting an investigation including a meeting of all interested parties, the Coast Guard is proposing to change the drawbridge operation regulations for the Route 35 Bridge to require a two hour notice during the times the bridge is not normally crewed instead of the four hour notice presently authorized, and to change the all day notice requirement from the existing November 1 through April 30, to December 1 through March 31. 

## Discussion of Proposal 

This proposed rule would amend 33 CFR 117.709 by revising paragraph (a) to allow the bridge owner to require a two hour notice for bridge openings from 11 p.m. to 7 a.m., year round and all day from December 1 through March 31. 

## Regulatory Evaluation 

This proposed 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 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). 

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation, under the regulatory policies and procedures of DHS is unnecessary. 

This conclusion is based on the fact that the bridge will open during times when the bridge is not normally crewed after a two hour instead of four hour notice which is required by the existing regulations. 

## Small Entities 

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed 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 section 5 U.S.C. 605(b), that this proposed rule would not have a significant economic impact on a substantial number of small entities. 

This conclusion is based on the fact that the bridge will open during times the bridge is not normally crewed after a two hour instead of four hour notice which is required by the existing regulations. 

                    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.                 

## Assistance for Small Entities 

                    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121),                           ( print page 70564)                        we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. 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 us in writing at, Commander (obr), First Coast Guard District, Bridge Branch, One South Street, New York, NY, 10004. The telephone number is (212) 668-7165. 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 proposed rule would call 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. 

## Taking of Private Property 

This proposed rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. 

## Civil Justice Reform 

This proposed 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 proposed 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 may 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 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. 

## 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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. 

## Environment 

We have analyzed this proposed rule under 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 there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environment documentation because it has been determined that the promulgation of operating regulations or procedures for drawbridges are categorically excluded. 

# List of Subjects in 33 CFR Part 117

      - Bridges

## Regulations 

For the reasons set out in the preamble, the Coast Guard proposes to amend 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; section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 

2. Section 117.709 is amended by revising paragraph (a) to read as follows: 

§ 117.709 

(a) The draw of the Route 35 Bridge, at mile 0.0, at South Amboy, New Jersey, shall operate as follows: 

(1) From April 1 through November 30 from 7 a.m. to 8 p.m., the draw need only open on the hour. From 8 p.m. to 11 p.m. the draw shall open on signal. From 11 p.m. to 7 a.m. the draw shall open after a two hour notice is given by calling the number posted at the bridge. 

(2) From December 1 through March 31, the draw shall open on signal after a two hour notice is given by calling the number posted at the bridge. 

* * * * *

Dated: November 4, 2005. 

David P. Pekoske, 

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

[FR Doc. 05-23028 Filed 11-21-05; 8:45 am] 

BILLING CODE 4910-15-P