2010-13643. Drawbridge Operation Regulation; Taunton River, Fall River and Somerset, MA

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to change the drawbridge operation regulations for the Brightman Street (Rt-6) Bridge at mile 1.8, between Fall River and Somerset, Massachusetts, to help relieve the bridge owner from the burden of crewing the bridge during time periods when the bridge receives few requests to open. In addition, we are removing some obsolete language from the regulations, the operating regulations for the Bristol County Bridge at mile 10.3, because that bridge has subsequently been replaced with a fixed span highway bridge.

DATES:

Comments and related material must be received by the Coast Guard on or before July 8, 2010.

ADDRESSES:

You may submit comments identified by docket number USCG-2010-0234 using any one of the following methods:

(1) Federal Rulemaking 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 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. John W. McDonald, Project Officer, First Coast Guard District Bridge Branch, at 617-223-8364, 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-2010-0234), 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-2010-0234” 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-2010-0234” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit either 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.

Background and Purpose

The Brightman Street (Rt-6) Bridge at mile 1.8, across the Taunton River between Fall River and Somerset, Massachusetts, has a vertical clearance in the closed position of 27 feet at mean high water and 31 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.619.

The bridge is required under the existing regulations to open on signal as follows:

At all times from April 1 through May 31 and from September 1 through November 1.

From June 1 through August 31, the draw need not open for pleasure craft from 7 a.m. to 9:30 a.m. and 4 p.m. through 6:30 p.m., Monday through Friday, except holidays. The draw is required to open on signal for commercial vessels at any time during the June 1 through August 31, time period.

From November 1 through March 31, the bridge is required to open on signal 6 a.m. through 6 p.m. and from 6 p.m. through 6 a.m. the bridge shall open after a one-hour advance notice is given.

The owner of the bridge, Massachusetts Department of Transportation, has been crewing the bridge in excess of the time required in the existing regulations during the winter months, November 1 through March 31. They have been crewing the bridge from 5 a.m. through 9 p.m. with a one-hour advance notice required from 9 p.m. through 5 a.m. This allows the bridge owner to crew the bridge in two eight hour shifts rather than one eight hour shift plus four hours of overtime.

The bridge owner has subsequently requested a change to the regulations to allow them to crew the bridge year round from 5 a.m. through 9 p.m., daily, with a one-hour advance notice from 9 p.m. through 5 a.m.

The bridge owner provided bridge logs which indicated few requests to open the draw after 9 p.m. In addition, the NRG power plant (Montop Electric) which formerly operated upstream from the bridge has closed permanently which will eliminate most, if not all, commercial vessel transits.

The bridge opening logs for the past three years, 2007, 2008, and 2009, indicated few requests to open the bridge after 9 p.m. year round for vessel traffic.

There were 11 requests to open the bridge after 9 p.m. in 2009, 9 requests to open after 9 p.m. in 2008, and 14 requests to open after 9 p.m. in 2007.

Under this proposed rule the bridge would open on signal year round from 5 a.m. to 9 p.m. and between 9 p.m. and 5 a.m., after a one-hour advance notice is given by calling the number posted at the bridge.

Coast Guard believes this proposed rule is reasonable, and if implemented, should continue to meet the present and future needs of navigation.

Discussion of Proposed Rule

The Coast Guard proposes to amend the drawbridge operation regulations for the Brightman Street (Rt-6) Bridge by revising 33 CFR 117.619, which lists the operation of the Brightman Street Bridge.

This proposed rule would change the regulations to allow the bridge to open on signal from 5 a.m. through 9 p.m., and after a one-hour advance notice is given from 9 p.m. through 5 a.m. year round.

It is anticipated that commercial vessel traffic will be infrequent, if not, non-existent, due to the permanent closing of the NRG power plant (Montop Electric) formerly located upstream from the bridge. Several coal deliveries were made to the power plant each month while it was in operation; however, the power plant has subsequently ceased operation.

In addition, we are removing the language formerly located in paragraph (c) from the proposed regulation because the bridge it references, the Bristol County Bridge at mile 10.3, across the Taunton River has been removed and replaced with a fixed highway bridge; thus, the drawbridge operation regulations are no longer necessary.

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 conclusion is based upon the fact that this proposal expands the time period the bridge is crewed in the winter months and extends the winter schedule to year round based on historic infrequent use between 9 p.m. and 5 a.m.

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. This action will not have a significant economic impact on a substantial number of small entities for the following reasons. The vessel operators that normally frequent this waterway will still be able to obtain bridge openings after 9 p.m. by simply providing a one-hour advance notice by calling the number posted at the 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.

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. John W. McDonald, Project Officer, First Coast Guard District Bridge branch by telephone at 617-223-8364 or by e-mail [e-mail]. 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. Section 117.619 is revised to read as follows:

§ 117.619

Taunton River.

(a) The Brightman Street (Route-6) Bridge at mile 1.8, between Fall River and Somerset, shall operate as follows:

(b) The draw shall open on signal between 5 a.m. and 9 p.m., daily. From 9 p.m. through 5 a.m. the draw shall open on signal after at least a one-hour advance notice is given by calling the number posted at the bridge.

(c) From June 1 through August 31, the draw need not open for the passage of pleasure craft from 7 a.m. to 9:30 a.m. and from 4 p.m. to 6:30 p.m., Monday through Friday, except holidays. The draw shall open for commercial vessels at all times.

(d) From 6 p.m. on December 24 to midnight on December 25, and from 6 p.m. on December 31 to midnight on January 1, the draw shall open on signal if at least a two-hour advance notice is given by calling the number posted at the bridge.

The owner of the bridge shall provide and keep in good legible condition clearance gauges located on both upstream and downstream sides of the draw with figures not less than twelve inches in height, designed, installed and maintained according to the provisions of section 118.160 of this chapter.

Dated: May 25, 2010.

Joseph A. Servidio,

Captain, U.S. Coast Guard, Acting Commander, First Coast Guard District.