2013-01139. Safety Zone; Sellwood Bridge Move; Willamette River, Portland, OR

AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing of a temporary safety zone around the Sellwood Bridge, located on the Willamette River in Portland, Oregon, while it is being relocated 66 feet downriver as part of the new Sellwood Bridge construction project. This action is necessary to ensure the safety of persons and vessels transiting the Willamette River in the vicinity of the Sellwood Bridge as it is being moved. This safety zone will also allow full maneuverability for construction operations in this area during the bridge movement operation. The safety zone will be effective for two days, but will only be enforced as long as is necessary to complete the bridge movement.

DATES:

This rule is effective from 12:01 a.m. on January 19, 2013 to 11:59 p.m. on January 20, 2013.

ADDRESSES:

Documents mentioned in this preamble are part of docket [USCG-2012-1097]. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov,, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 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 or email Ensign Ian P. McPhillips, Waterways Management Division, Marine Safety Unit Portland, U.S. Coast Guard; telephone [phone], email [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security

FR Federal Register

NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

The Coast Guard is issuing this 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)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because to do so would be impracticable as the Coast Guard received a late notification of the event. The reason for the late notification was that the date of the bridge move could be set only after an exact date of the completion of the two structures was established. Additionally, because of the complexity of moving the bridge in one piece to new abutments and piers, the construction team could not reschedule the move.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because to do otherwise would be impracticable as the Coast Guard received a notification of the event one month prior to it. The bridge construction contractor was constrained by the completion of the temporary structures and the availability of the subcontractor conducting the actual bridge move, so the date of the move could not be established any earlier.

B. Basis and Purpose

The Sellwood Bridge Move is part of the Sellwood Bridge Project to replace the existing 86-year-old bridge that is structurally inadequate and functionally obsolete. The project includes moving the bridge 66 feet north and building two temporary structures. A safety zone is needed to help ensure the safety of persons and vessels transiting the area from any overhead hazards created during the bridge move.

C. Discussion of the Final Rule

This rule establishes a safety zone that covers the waters of the Willamette River, extending 100 feet upriver and 160 feet downriver of the Sellwood Bridge and to the east and west shorelines. This safety zone prohibits all vessel traffic for the duration of the bridge move with the exception of emergency vessels. A passage through the safety zone for commercial vessels may be requested with a four-hour advance notice through the Captain of the Port by contacting the Sector Columbia River Command Center at [phone], or the Patrol Commander on VHF Channel 23.

This safety zone encompasses an existing safety zone along the east and west shorelines of the Sellwood Bridge (See Sellwood Bridge Project, Docket No. USCG-2012-0131), which was established for the entire duration of the construction of the new bridge, expected to be completed in July 2015. This safety zone will be effective on January 19 and 20, 2013. We note that upon the expiration of this safety zone, the Sellwood Bridge Project safety zone will continue to remain in place.

D. Regulatory Analyses

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

1. Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although the safety zone would apply to the entire width of the river, the effect of this rule will not be significant because: (i) The safety zone is limited in size; (ii) traffic would be allowed to pass through the zone with the permission of the Captain of the Port; (iii) all river users in the area have been notified of the date and time of the temporary closure; and (iv) before the activation of the zone, the Coast Guard will issue maritime advisories widely available to users in the river.

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 rule will not have a significant economic impact on a substantial number of small entities. Although the safety zone would apply to the entire width of the river, this rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone is limited in size; (ii) traffic would be allowed to pass through the zone with the permission of the Captain of the Port; (iii) all known river users in the area have been notified of the date and time of the temporary closure; and (iv) before enforcing the zone, the Coast Guard will issue maritime advisories widely available to users in the river.

3. Assistance for Small Entities

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 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.

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.

4. Collection of Information

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

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 rule under that Order and determined that this rule does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. 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.

7. 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.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

9. 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.

10. 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 create an environmental risk to health or risk to safety that may disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.

12. Energy Effects

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

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

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have 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 rule involves the establishment of a temporary safety zone around the Sellwood Bridge on the Willamette River in Portland, OR. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine Safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Waterways

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T13-238 to read as follows:

§ 165.T13.238

Safety Zone; Sellwood Bridge Move; Willamette River, Portland, OR.

(a) Location. The following area is a safety zone: All waters of the Willamette River around the Sellwood bridge in Portland, OR bounded by a line beginning at the west shoreline north of the Sellwood bridge at 45°27′54″ N, 122°40′01″ W; thence to the east at 45°27′54″ N, 122°39′52″ W; thence to the east shoreline south of the Sellwood bridge at 45°27′52″ N, 122°39′49″ W; thence to the west at 45°27′52″ N, 122°40′01″ W; thence north along the west shoreline to the point of origin.

(b) Enforcement Periods. The Coast Guard Sector Columbia River Captain of the Port will cause notice of the enforcement of this safety zone to be made by all appropriate means to effect the widest publicity among the affected segments of the public as practicable, in accordance with 33 CFR 165.7. Such means of notification may include, but are not limited to, Broadcast Notices to Mariners or Local Notices to Mariners. The Sector Columbia River Captain of the Port will issue a Broadcast Notice to Mariners and Local Notice to Mariners notifying the public when enforcement of the safety zone is suspended. Upon notice of enforcement by the Sector Columbia River Captain of the Port, the Coast Guard will enforce the safety zone in accordance with rules set out in this section. Upon notice of suspension of enforcement by the Sector Columbia River Captain of the Port, all persons and vessels are authorized to enter, transit, and exit the safety zone, consistent with the Navigation Rules.

(c) Regulations. In accordance with the general regulations in § 165.23 of this part, no person or vessel may enter or remain in this zone unless authorized by the Captain of the Port or his designated representatives. To request transit through this zone contact the Sector Columbia River Command Center at [phone], or the Patrol Commander on VHF Channel 23.

Dated: January 7, 2013.

B.C. Jones,

Captain, U.S. Coast Guard, Captain of the Port, Sector Columbia River.