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

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 (Advance, Supplemental)

§ Section

U.S.C. United States Code

II. Background, Purpose and Legal Basis

The Amtrak Portal Bridge is a swing bridge across the Hackensack River, at mile 5.0, in Little Snake Hill, NJ. The bridge has a vertical clearance of 23 feet at mean high water in the closed position and 102 feet at mean high water in the open position. When closed, the Amtrak Portal Bridge allows trains to transit across the river. When marine traffic needs to transit down the waterway, the bridge swings open from a central pivot to create horizontal clearance for vessels. The waterway users include recreational and commercial vessels, and the existing drawbridge operating regulations are listed at 33 CFR 117.723(e).

In partnership with New Jersey Transit, Amtrak plans to replace the Amtrak Portal Bridge (existing bridge), with a 52-foot-tall, fixed bridge, the Portal Bridge North (new bridge) that will allow marine traffic to pass without movement of the bridge. Shoreside construction of the new bridge is already underway and New Jersey Transit estimates completion by February 2027. To support construction of the new bridge, New Jersey Transit submitted a request to the Coast Guard to change the drawbridge operating regulations of the existing bridge.

The purpose of this proposed rule is to limit the opening of the existing Amtrak Portal Bridge to prevent striking the new Portal Bridge North while swinging open. This is necessary due to the proximity of the new Portal Bridge North to the existing Amtrak Portal Bridge.

The Coast Guard is proposing this rulemaking under the authority in 33 U.S.C. 499.

III. Discussion of Proposed Rule

The Amtrak Portal Bridge would continue to operate under its regular operating schedule found in 33 CFR 117.723(e), but there would be a difference in the horizontal clearance. Presently, the Amtrak Portal Bridge provides 88 feet horizontal clearance in the east channel and 91 feet horizontal clearance in the west channel. This proposed rule would allow the bridge to only open to 55 feet horizontal clearance in the east channel and the west channel would be closed to all navigation.

Construction on the new Portal Bridge North will prevent the existing Amtrak Portal Bridge from fully opening in the horizontal position in order to prevent the swing span from striking the new Portal Bridge North during construction. The construction will impact the Amtrak Portal Bridge for approximately 2 years, from February 1, 2025, to February 1, 2027, after which the existing bridge will be demolished.

There is one regular commercial waterway user that transits the Portal Bridge on an average of two to three round trips per week. There are also some recreational vessels that transit the bridge. The Coast Guard's review of the bridge logs in the last two years shows that bridge openings average 25 per month. Vessels narrower than 55 feet wide would still be able to transit through the narrower opening of the bridge. There are no other known commercial or recreational vessels that will be impacted by this rule.

IV. Regulatory Analysis

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.

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 proposed rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB). A regulatory analysis follows.

This proposed rule would allow the existing bridge to open to only 55 feet horizontal clearance in the east channel compared to the current horizontal clearance of 88 feet. The west channel would be closed to all navigation. This closure would prevent operation of a commercial tug that tows a 70 feet wide barge because the 55-foot opening is too narrow for the barge to transit safely. This is the only known commercial vessel that would be impacted by this rule.

Affected Population

We anticipate that this proposed rule would only impact a single commercial vessel that would be unable to transit the Amtrak Portal Bridge during construction of the new bridge. There are no other known commercial vessels impacted by this rule. If you believe that there are additional impacted vessels, please submit a public comment providing the vessel(s) size, type, and destination. The Coast Guard did not identify other commercial entities that would be impacted by this proposed rule. Also, we do not anticipate that recreational vessels would be impacted by this proposed rule as the Coast Guard did not identify any recreational vessel that could not transit within the 55-foot horizontal clearance.

Costs

The costs of this proposed rule would be lost revenue incurred by the commercial tug whose barge cannot transit the narrower opening of the existing bridge. The commercial tug has several alternative options to avoid the lost revenue, however. The first option is for the commercial tug company to buy a new barge that is narrow enough to go through the 55-foot bridge opening. Additionally, the commercial barge company could switch the current barge for another barge in their fleet, assuming that barge is compatible with their various tasks.

Benefits

The benefit of this rule is that it allows for the construction of a new bridge to transport the 150,000-200,000 daily passenger train commuters who currently use the bridge. Construction of the new bridge has been approved by New Jersey Transit and is already in progress. The new bridge would allow for trains to travel at up to 90 mph, compared to the current 60 mph allowed by the current bridge. Additionally, the new bridge is not a drawbridge and therefore, should experience less mechanical malfunction leading to fewer delays.

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. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.

When an agency promulgates a final rule under section 553 of 5 U.S. Code, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency must prepare an initial regulatory flexibility analysis (IRFA) or have the head of the agency certify pursuant to RFA section 605(b) that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. The RA prescribes the content of the IRFA, which we discuss below.

(1) A description of the reasons why action by the agency is being considered;

(2) A succinct statement of the objectives of, and legal basis for, the rule;

(3) A description of and, where feasible, an estimate of the number of small entities to which the rule will apply;

(4) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap or conflict with the rule; and

(6) A description of any significant alternatives to the rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the rule on small entities.

Below is a discussion of the IRFA analysis for each of these six elements.

(1) A description of the reasons why action by the agency is being considered:

This proposed rule would address the need to accommodate the construction of the new Portal Bridge North, which would prevent the existing bridge from fully opening due to the proximity of the existing bridge to the bridge currently under construction.

(2) A succinct statement of the objectives of, and legal basis for, the rule:

The objective of this rule is to modify width of opening for the Amtrak Portal Bridge in 33 CFR 117.723(e) to accommodate construction activity for the new Portal Bridge North. The Coast Guard has statutory authority to promulgate drawbridge operation regulations under 33. U.S.C. 499.

(3) A description of and, where feasible, an estimate of the number of small entities to which the rule will apply:

The proposed rule would affect vessels transiting through the Amtrak Portal Bridge. The only known entity impacted by this rule is a commercial tug company that transports sludge to the NJ treatment plant. We used available operator name and address information to research public and proprietary databases for entity type (subsidiary or parent company), primary line of business, employee size, revenue, and other information. The company had no information available through these databases. Consistent with DHS practice, entities with no information available will be considered “small entities.” Without quantitative cost data or revenue data, we're not capable of analyzing the revenue impact of this rule to this small entity, thus we assume the impact is significant.

(4) A description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record:

This proposed rule calls for no new reporting, recordkeeping or other compliance requirements.

(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap or conflict with the rule:

The Coast Guard has not identified any Federal rules that duplicate, overlap, or conflict with the rule. 33 CFR 117.723(e) is the only Federal rule that controls the drawbridge operation schedule for the Amtrak Portal Bridge.

(6) A description of any significant alternatives to the rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the rule on small entities.

The Coast Guard considered several alternatives to this rule to minimize any impact to small entities. The Coast Guard considered closing the waterway to all commercial and recreational traffic to ensure safety during construction of the new bridge. This alternative was rejected since the drawbridge is still capable of opening part of the way and allowing safe travel for vessels smaller than 55 feet wide. Additionally, we considered allowing for shorter notice to open the drawbridge for commercial vessels. This was rejected since the shorter notice would be unsafe for the passenger trains that use the bridge when it is closed.

Finally, the Coast Guard considers the rule as our preferred alternative. This allows for recreational and commercial vessels smaller than 55 feet wide to transit the waterway without disrupting construction of the new bridge.

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 proposed 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 proposed rule or any policy or action of the Coast Guard.

C. 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.).

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 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 substantial direct effect on one or more Indian tribes, or the relationship between the Federal Government and Indian tribes. If you believe this proposed rule has implication for federalism or Indian tribes, please contact 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 proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in the preamble.

F. Environmental

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing, instructions, 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 proposed rule promulgates the operating regulations or procedures for drawbridges. Normally such actions are categorically excluded for further review, under paragraph L49 of chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementing Planning Implementation Procedures.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are 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.

V. Public Participation and Request for Comments

We viewed 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.

Submitting comments. 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-2024-0412 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.

Viewing material in docket. To view documents mentioned in this proposed 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. Also, 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 of any posting or updates to the docket.

We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal Information. 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).

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

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.

2. Amend § 117.723 by revising paragraph (e) to read as follows:

[FR Doc. 2024-22822 Filed 10-2-24; 8:45 am]

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