2010-30739. Drawbridge Operation Regulation; Duluth Ship Canal, Duluth-Superior Harbor, MN

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to establish a drawbridge opening schedule for the Duluth Aerial Lift Bridge for vessels under 300 gross tons. Scheduled drawbridge openings were requested by various local entities to help reduce traffic congestion near the drawbridge during the peak navigation and tourist season. The scheduled drawbridge openings are expected to improve traffic congestion in the area and enhance safety for all modes of transportation.

DATES:

Comments and related material must reach the Coast Guard on or before January 7, 2011.

ADDRESSES:

You may submit comments identified by docket number USCG-2010-1030 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.

(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call or e-mail Mr. Lee Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone [phone], e-mail [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:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change to http://www.regulations.gov and will include any personal information you have provided.

Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (USCG-2010-1030), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (http://www.regulations.gov), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rules” and insert “USCG-2010-1030” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2010-1030” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. 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. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Privacy Act

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES. Please explain 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.

Basis and Purpose

The Duluth Aerial Bridge is located 0.25 miles from Duluth Harbor North Pier Light at the lakeward end of the Duluth Ship Canal. It is a vertical lift type bridge that provides 15 feet of vertical clearance in the down position and up to 141 feet in the open position. The bridge currently opens on signal for all vessel traffic that requires a bridge opening. Marine traffic on the waterway consists of large commercial vessels, smaller commercial vessels, and both power and sail recreational vessels.

Various entities in Duluth that requested the scheduled openings included: City of Duluth, Duluth Fire Department-Emergency Management, Duluth Police Department, Park Point Community Association, and Canal Park Business Association. The scheduled drawbridge openings were requested during the peak navigation and tourist season to improve the flow of vehicular traffic over the bridge, relieve vehicular traffic congestion near the bridge and on city streets on both sides of the bridge (Park Point and Canal Park), improve access and response times for emergency response entities, and enhance pedestrian safety in the vicinity of the bridge.

Commander, Ninth Coast Guard District, approved a temporary deviation from regulations, with request for comments, that was published in the April 22, 2010, issue of the Federal Register (75 FR 20918). The temporary deviation was constructed to be used as a test bridge schedule during the 2010 navigation and tourist season. The test schedule allowed for scheduled bridge openings on the hour and half-hour for all vessels under 300 gross tons between the hours of 6 a.m. and 9 p.m., seven days per week, and on signal between 9 p.m. and 6 a.m., from May 3 to October 29, 2010. The bridge continued to open at all times for all vessels over 300 gross tons and Federal, State, and local government vessels, vessels in distress, commercial vessels engaged in rescue or emergency salvage operations, vessels engaged in pilot duties, and vessels seeking shelter from severe weather. Written comments regarding the test schedule were solicited throughout the period.

The Coast Guard received four (4) comments regarding the test schedule that were successfully received by the Docket Management Facility. Three of the comments were from charter fishermen operating out of Duluth Harbor. The fourth comment was from a representative of Duluth Seaway Port Authority. The comments from charter fishermen generally cited objections to the scheduled bridge openings for their type of vessels. Among the comments were statements regarding inconsistencies by bridge operators for openings, concerns for vessel safety due to smaller power vessels operating in the canal at high speeds among vessels waiting for bridge openings, and dates and times of the day that the scheduled openings should apply; specifically, that the scheduled openings should not be in place before 7:30 a.m. each day. The Port Authority commenter stated that the scheduled openings should not apply to commercial vessels of any size that support the commercial cargo business in the port, as well as research and survey vessels. The Port Authority comment also included a recommendation to adjust the dates and times that scheduled drawbridge openings would apply.

In addition to the written comments, a stakeholders meeting was held in Duluth on October 20, 2010, to review and evaluate the test drawbridge schedule and receive comments. The stakeholders meeting included representatives from Coast Guard, City of Duluth, Duluth Seaway Port Authority, Park Point Community Association, Canal Park Business Association, Great Lakes Towing Company, Vista Cruise Lines, Duluth Yacht Club, and Charter Fishermen.

Discussion of Proposed Rule

The City of Duluth collected data throughout the test period related to vehicular and vessel traffic counts, and the number of bridge openings. In addition to the data collected, each stakeholder had the opportunity to amplify their written comments and provide additional direct input to the Coast Guard during the October 20, 2010, meeting. During the stakeholder meeting it was generally agreed by all parties that the scheduled bridge openings appeared to improve the general flow of vehicular traffic on both sides of the bridge and reduced vehicular traffic congestion. The claim of inconsistencies by the bridge operators was discussed, and appeared to be isolated to only a few incidents. They also occurred near the beginning of the test period and can reasonably be attributed to all parties adjusting to the scheduled bridge openings. The Port Authority and Great Lakes Towing Company representatives stated their positions that towing vessels engaged in port operations should be specifically included with vessels that continue to have bridge openings at any time (on signal). The proposed rule has been adjusted to include these types of vessels for openings on signal. Research and survey vessels operating from Duluth Harbor were also requested to be specifically included in this group. This class of vessels is considered public or government vessels and may request bridge openings on signal. Only a minor adjustment to the proposed language is needed to address this statement. The comment regarding vessels operating at unsafe speeds in the canal is considered a law enforcement issue and not related to the scheduled drawbridge openings. The Coast Guard will take these reports into consideration. Regarding the time of year and hours each day that the scheduled openings would apply, it was generally agreed during the stakeholders meeting that the scheduled openings would be beneficial and effective between Memorial Day and Labor Day each year, instead of the beginning of May to the end of October, as it was implemented for the test schedule. The scheduled opening hours during the test schedule were from 6 a.m. to 9 p.m. each day. It was requested that the scheduled openings start at 7:30 a.m. instead of 6 a.m. The later start time was requested to allow for the charter fishermen to obtain bridge openings for their first trip of the day during a time when vehicular traffic is still relatively light. The data collected by the City of Duluth supports the agreed change to the dates that the scheduled openings would apply. The data also identifies that the requested time each day to start scheduled openings should be 7 a.m. instead of 6 a.m. or 7:30 a.m. In addition to the vehicular traffic data below that indicates a clear increase in rush hour traffic between 7 and 8 a.m., bridge opening logs showed that the first trip each day for most charter fishermen occurred before 7 a.m. In order to maintain an effective bridge schedule that accomplishes the purpose of managing traffic congestion while still providing for the reasonable needs of navigation, the proposed rule adjusts the times for scheduled openings from 7 a.m. to 9 p.m. The later time was also discussed and determined to remain at 9 p.m. since there is still considerable vehicular traffic departing the public park area on Minnesota Point around this hour between Memorial Day and Labor Day. Additionally, the 9 p.m. time does not adversely affect any vessel traffic. The data below collected by City of Duluth illustrates support for the agreed adjustments during the stakeholders meeting:

Total Vessels Under 300 Gross Tons

	May	June	July	Aug	Sep	Oct
2009	383	1287	2015	1974	1331	212
2010	528	1066	2088	1430	1016	380
Total Bridge Openings
2009	320	841	1097	1184	800	350
2010	300	576	860	630	752	429

Total Vehicles (Both Directions)

[Vehicular counts were not collected in 2009]

	May	June	July	Aug	Sep	Oct
2010	102,564	210,539	266,000	230,668	160,591	163,110

Total Average Vehicles for Each Hour

	6 a.m.-7 a.m.	7 a.m.-8 a.m.
June	68.20	97.53
July	58.77	87.80
August	50.04	84.09

In addition to the two scheduled openings per hour, vessels will continue to have access to the harbor through the alternate Superior, Wisconsin, Entry Channel, and passage of the Aerial Bridge during unscheduled openings for commercial vessels. The proposed schedule is expected to provide for the reasonable balance of all modes of transportation and effectively accomplish the requested goal of improving traffic congestion and safety in the area of the Duluth Aerial Bridge.

This proposed regulation also adjusts the current required advance notice requirement for vessels from 24-hours to 12-hours vessels between January 1 and March 15.

Regulatory Analyses

We developed this proposed 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 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 section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This determination is expected to improve traffic congestion and safety in the vicinity of the drawbridge and does not exclude bridge openings for vessel traffic.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 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 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule continues to provide at least two drawbridge openings per hour between 7 a.m. and 9 p.m. each day, and openings at any time during all other hours, as well as during unscheduled transits of commercial vessels. The test schedule implemented this year resulted in only minor adjustments in schedules or operations for all entities. Additionally, all vessels that do not require bridge openings may transit the drawbridge at any time, and the alternate Superior, Wisconsin, Entry Channel may be used by all vessels at any time.

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), 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 Mr. Lee D. Soule, Bridge Management Specialist, U.S. Coast Guard, telephone [phone], e-mail [e-mail], or fax [phone]. 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.

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 (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 rule elsewhere in this preamble.

Taking of Private Property

This proposed rule would 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.

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 might disproportionately affect children.

Indian Tribal Governments

This proposed 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 proposed 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 Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 117

• Bridges

For the reasons discussed 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; Department of Homeland Security Delegation No. 0170.1.

2. Revise § 117.661 to read as follow:

§ 117.661

Duluth Ship Canal (Duluth-Superior Harbor).

The draw of the Duluth Ship Canal Aerial bridge, mile 0.25 at Duluth, shall open on signal; except that, from the Friday before Memorial Day through the Tuesday after Labor Day each year, between the hours of 7 a.m. and 9 p.m., seven days a week, the drawbridge shall open on the hour and half-hour for vessels under 300 gross tons, if needed; and the bridge will open on signal for all vessels from 9 p.m. to 7 a.m., seven days a week, and at all times for Federal, State, and local government vessels, vessels in distress, commercial vessels engaged in rescue or emergency salvage operations, commercial-assist towing vessels engaged in towing or port operations, vessels engaged in pilot duties, vessels seeking shelter from severe weather, and all vessels 300 gross tons or greater. From January 1 through March 15, the draw shall open on signal if at least 12 hours notice is given. The opening signal is one prolonged blast, one short blast, one prolonged blast, one short blast. If the drawbridge is disabled, the bridge authorities shall give incoming and outgoing vessels timely and dependable notice, by tug service if necessary, so that the vessels do not attempt to enter the canal.

Dated: November 23, 2010.

M.N. Parks,

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