2011-3572. Drawbridge Operation Regulation; Curtis Creek, Baltimore, MD

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is temporarily changing the drawbridge operation regulations of the Pennington Avenue Bridge, across Curtis Creek, mile 0.9, at Baltimore, MD. This temporary change allows the bridge to operate on a restricted schedule to complete structural repairs and replacement of the grid deck, floor beams and stringers.

DATES:

This temporary final rule is effective from 6 a.m. on February 17, 2011 to 11:59 p.m. on November 30, 2011.

ADDRESSES:

Documents indicated in this preamble as being available in the docket, are part of docket USCG-2010-1103 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-1103 in the “Keyword” box, and 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, 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 Bill H. Brazier, Bridge Management Specialist, Fifth Coast Guard District; telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

The Coast Guard is issuing this temporary final 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 after the current repair project began extensive additional repairs and replacements were identified. This additional work will require additional time to complete. The corresponding request to revise the operating schedule for this temporary final rule also required extensive coordination with the known affected marine facilities (i.e., the Coast Guard Yard and the U S. Army Reserve Unit), the City of Baltimore, MD, and the contractor so that necessary repairs can continue to the Pennington Avenue Bridge. The timing of the discovery of the additional repairs and replacements combined with the length of time to coordinate with the affected parties makes it impractical to publish an NPRM and still continue the work as scheduled. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register for the same reasons stated in the preceding paragraph.

Basis and Purpose

The City of Baltimore, MD, who owns and operates this double-leaf bascule drawbridge, has requested a temporary change from the current general operating regulation set out in 33 CFR 117.5 that requires the bridge to open promptly and fully for the passage of vessels when a request to open is given, to complete structural repairs.

The Pennington Avenue Bridge has a vertical clearance in the closed position to vessels of 38 feet, above mean high water. Regular users of the waterway consist of Coast Guard vessels bound for the Coast Guard Yard at Curtis Bay, as well as a significant amount of commercial vessels that pass through the bridge.

On August 17, 2010, we published a notice of temporary deviation from regulation entitled “Drawbridge Operation Regulations; Curtis Creek, Baltimore, MD” in the Federal Register (74 FR 50707). The temporary deviation allowed the bridge to operate on a restricted schedule to facilitate structural repairs from August 5, 2010 to December 1, 2010.

During completion of structural repairs, the drawbridge with four lift spans will provide full and partial openings of the spans for vessels on several dates and times from February 17, 2011 to November 30, 2011. During the replacement of the grid deck, floor beams and stringers, the drawbridge will be maintained in closed position to vessels to include immobilizing half of the draw spans to single-leaf operation.

Discussion of Rule

The Coast Guard is temporarily amending 33 CFR 117.557 by inserting new paragraphs (a) and (b).

Paragraph (a) will contain the temporary rule for the Pennington Avenue Bridge at mile 0.9 in Baltimore, MD. The rule will allow the draw of the bridge to operate as follows: (1) Need not open from 6 a.m. on February 17, 2011 to 11:59 p.m. on January 20, 2011; except, vessel openings shall be provided on signal if at least two hours advance notice is given; (2) Single-leaf operation on the southeast side span from 11:59 p.m. on January 20, 2011 to 11:59 p.m. on February 12, 2011. The opposite connecting spans on the north side while not under repair shall continue to open on signal for vessels; (3) Need not open from 11:59 p.m. on February 12, 2011 to 11:59 p.m. on March 6, 2011; except, vessel openings shall be provided on signal if at least two hours advance notice is given; (4) Single-leaf operation on the southwest side span from 11:59 p.m. on March 6, 2011 to 11:59 p.m. on March 28, 2011. The opposite connecting spans on the north side while not under repair shall continue to open on signal for vessels; (5) Need not open from 11:59 p.m. on March 28, 2011 to 11:59 p.m. on November 30, 2011; except, vessel openings shall be provided on signal if at least two hours advance notice is given.

Paragraph (b) will contain the existing regulations for the I695 Bridge, mile 1.0, at Baltimore, MD.

The temporary regulation will not significantly disrupt vessel traffic since mariners may still transit the bridge with full and partial openings of the draw spans for vessels on several dates and times.

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses 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.

We expect the economic impact of this temporary rule to be so minimal that a full Regulatory Evaluation is unnecessary. We reached this conclusion based on the fact that the temporary changes have only a minimal impact on maritime traffic transiting the bridge. Mariners can still plan their trips in accordance with the scheduled bridge openings, and to minimize delays, vessels that can pass under the bridge without a bridge opening may do so at all times.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 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 of 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 rule will affect the following entities, some of which may be small entities: Commercial users and unexpected users of the waterway intending to transit the drawbridge on signal. This action will not have a significant economic impact on a substantial number of small entities for the following reasons. Mariners can plan their trips in accordance with the scheduled bridge openings, to minimize delays and vessels that can pass under the bridge without a bridge opening may do so at all times.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. 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 (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.

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, eliminates 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 would not create an environmental risk to health or risk to safety that might 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 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 do 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; Department of Homeland Security Delegation No. 0170.1.

2. From February 17, 2011 to November 30, 2011, suspend § 117.557, and add § 117.558, to read as follows:

§ 117.558

Curtis Creek.

(a) The draw of the Pennington Avenue Bridge, mile 0.9 at Baltimore shall operate as follows:

(1) Need not open from 6 a.m. on February 17, 2011 to 11:59 p.m. on January 20, 2011; except, vessel openings shall be provided on signal if at least two hours advance notice is given;

(2) Single leaf operation on the southeast side span from 11:59 p.m. on January 20, 2011 to 11:59 p.m. on February 12, 2011. The opposite connecting spans on the north side while not under repair shall continue to open on signal for vessels;

(3) Need not open from 11:59 p.m. on February 12, 2011 to 11:59 p.m. on March 6, 2011; except, vessel openings shall be provided on signal if at least two hours advance notice is given;

(4) Single leaf operation on the southwest side span starting from 11:59 p.m. on March 6, 2011 to 11:59 p.m. on March 28, 2011. The opposite connecting spans on the north side while not under repair shall continue to open on signal for vessels;

(5) Need not open from 11:59 p.m. on March 29, 2011 to 11:59 p.m. on November 30, 2011; except, vessel openings will be provided on signal if at least two hours advance notice is given.

(b) The draw of the I695 Bridge, mile 1.0 at Baltimore, shall open on signal if at least a one-hour notice is given to the Maryland Transportation Authority in Baltimore.

Dated: January 14, 2011.

William D. Lee

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