05-20468. Drawbridge Operation Regulations; Fox River, Green Bay, WI and DePere, WI

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is revising the operating regulations for highway drawbridges to establish permanent winter operating hours, and to establish operating regulations for two Canadian National Railway drawbridges, all located over the Fox River in Green Bay and DePere, WI. The revised regulation establishes permanent winter operating schedules for all drawbridges during winter months while still providing for the reasonable needs of navigation.

DATES:

This rule is effective November 14, 2005.

ADDRESSES:

Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket [CGD09-05-081] and are available for inspection or copying at Commander (obr), Ninth Coast Guard District, 1240 E. Ninth Street, Room 2025, Cleveland, Ohio 44199-2060, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Scot M. Striffler, Bridge Management Specialist, Ninth Coast Guard District, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory History

On August 10, 2005, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulations; Fox River, Green Bay, WI and DePere, WI,” in the Federal Register (70 FR 46441). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

Background and Purpose

The U.S. Coast Guard, at the request of Wisconsin Department of Transportation (WI-DOT), is modifying the existing operating schedule of the Main Street, Walnut Street, Mason Street (Tilleman Memorial), and George Street highway drawbridges between miles 1.58 and 7.27, and the two Canadian National Railway drawbridges at miles 1.03 and 3.31, respectively, over Fox River. The modified regulation primarily establishes permanent winter operating schedules for each drawbridge in lieu of the annual winter authorization granted by Commander, Ninth Coast Guard District, under the authority of 33 CFR 117.45.

All highway drawbridges are currently required to operate year-round and open on signal, except between the hours of 7 a.m. to 8 a.m., 12 noon to 1 p.m., and 4 p.m. to 5 p.m., Monday through Saturday, except for Federal holidays. This schedule does not apply to public vessels, tugs, and commercial vessels with a cargo capacity of 300 short tons or over, which are passed at all times. As noted, these drawbridges were granted yearly authorization to alter their operating schedules between December 15 and April 1 since approximately 1992.

The railroad drawbridges operated by Canadian National Railway at miles 1.03 and 3.31 over Fox River are swing bridges and currently have no permanent operating regulations, which requires the drawbridges to open on signal for vessels year-round, 24 hours per day. The Ninth Coast Guard District has also granted a yearly winter operating schedule for the railroad drawbridges from December 15 to April 1 each year since approximately 1992.

WI-DOT requested that the Coast Guard implement a permanent winter operating schedule for the Walnut Street and Mason Street (Tilleman Memorial) drawbridges between December 1 and April 1 each year. The Coast Guard expanded the review of all drawbridge regulations on Fox River to include the remaining highway drawbridges and the railroad drawbridges.

The Coast Guard requested drawbridge opening logs be provided for these two bridges for the month of December since the yearly authorization granted by the Coast Guard started on December 15 instead of the requested December 1 start date. The two highway bridges were considered representative of all drawbridges in Green Bay. The logs revealed that the request to begin winter operating hours on December 1 instead of December 15 was reasonable. Local Coast Guard units and representatives of American shipping companies were also consulted regarding the proposed schedule and provided no objections. The Canadian National Railway drawbridges would operate under the same schedules as the highway drawbridges, as requested by the railroad company in the past. During the yearly winter authorization granted for the highway and railroad drawbridges since 1992, the Coast Guard received no complaints regarding this schedule.

Discussion of Comments and Changes

No comments or letters were received in response to the NPRM. No changes to the proposed regulation were made.

Regulatory Evaluation

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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

The Coast Guard expects minimal public impact from this rule. The operating hours for recreational vessels does not effectively change since the substantive changes occur during winter months when recreational vessel activity has ceased. Commercial vessels have been required to provide 12-hours advance notice prior to passing drawbridges since approximately 1992 with no reported problems.

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 is because the new schedule for all highway and railroad drawbridges will not significantly affect large commercial vessels during the winter navigation season. Impacts to a substantial number of small entities will not occur since these entities mostly operate during non-winter months.

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 so that they could 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).

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 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 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.

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 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 environmental documentation. This rule involves modifying or establishing drawbridge operation regulations to reflect standard practices for drawbridge operating schedules during winter months on the Great Lakes, and will not have any impact on the environment.

List of Subjects in 33 CFR Part 117

• Bridges

Regulations

For the reasons set out 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; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039.

2. Section 117.1087 is amended by revising paragraphs (a) and (b) to read as follows:

§ 117.1087

Fox River.

(a) The draws of the Canadian National Bridge, mile 1.03, Main Street Bridge, mile 1.58, Walnut Street Bridge, mile 1.81, Mason Street (Tilleman Memorial) Bridge, mile 2.27, and Canadian National Bridge, mile 3.31, all at Green Bay, shall open as follows:

(1) From April 1 through November 30, the draws shall open on signal for recreational vessels; except the draws need not open from 7 a.m. to 8 a.m., 12 noon to 1 p.m., and 4 p.m. to 5 p.m., Monday through Saturday except Federal holidays. Public vessels, tugs, and commercial vessels with a cargo capacity of 300 short tons or greater shall be passed at all times.

(2) From December 1 through March 31, the draws shall open on signal if notice is given at least 12 hours in advance of a vessels time of intended passage.

(3) The opening signal for the Main Street Bridge is two short blasts followed by one prolonged blast, for the Walnut Street Bridge one prolonged blast followed by two short blasts, and for the Mason Street Bridge one prolonged blast, followed by one short blast, followed by one prolonged blast.

(b) The draw of the George Street Bridge, mile 7.27 at DePere, shall open on signal from April 1 to November 30; except that, from 6 p.m. to 8 a.m., the draw shall open on signal if notice is given at least 2 hours in advance of a vessels time of intended passage. From December 1 to March 31, the draw shall open on signal if notice is given at least 12 hours in advance of a vessels time of intended passage.

* * * * *

Dated: September 30, 2005.

R.J. Papp, Jr.,

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