2011-18225. Drawbridge Operation Regulations; Bayou Liberty, Mile 2.0, St. Tammany Parish, Slidell, LA

AGENCY:

Coast Guard, DHS.

ACTION:

Supplemental notice of proposed rulemaking.

SUMMARY:

The Coast Guard is proposing to change the operating schedule for the State Route 433 (S433) bridge across Liberty Bayou, mile 2.0, at Slidell, St. Tammany Parish, Louisiana. The proposed rule provides for an opening upon one-hour notice from 7 a.m. to 7 p.m., allowing the Louisiana Department of Transportation and Development, owner of the bridge, to reduce the hours of manned operation of the bridge in order to make more efficient use of personnel and operating resources. This Supplemental Notice follows a Notice of Proposed Rulemaking published in the Federal Register [USCG-2010-0972] on November 22, 2010 (75 FR 71061).

DATES:

Comments and related material must be received by the Coast Guard on or before September 19, 2011.

ADDRESSES:

You may submit comments identified by docket number USCG-2010-0972 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 Jim Wetherington; Bridge Administration Branch, Eighth 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-2010-0972), 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-2010-0972” 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-2010-0972” 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

In October 2010, the Louisiana Department of Transportation and Development (LDOTD), the owner of the bridge, replaced the existing S433 pontoon bridge over Bayou Liberty, mile 2.0, St. Tammany Parish, Slidell, LA with a new modern swing bridge. Due to the fact that not all vessels would now require the bridge to open for the passage of vessels, LDOTD requested a modification to the existing requirements for giving notice to open the bridge. The Coast Guard published a Notice of Proposed Rulemaking in the Federal Register [USCG-2010-0972] on November 22, 2010 (75 FR 71061). The proposed rule would have changed the notice required for an opening of the bridge from 7 a.m. to 7 p.m. from on signal to two hours notice. The notice required for an opening from 7 p.m. to 7 a.m. would have remained two hours as required by the existing regulations.

At the same time, a test deviation was published in the Federal Register (75 FR 71017) to allow mariners to test the proposed change for 30 days. Thirteen comments were received either by e-mail or through the docket but only four were within the time specified. All 13 comments were considered, and are discussed and addressed in this SNPRM.

Discussion of Comments and Changes

As stated above, we received 13 submissions commenting on the NPRM. Five comments expressed concern with testing a new opening procedure during the winter months and relying on recorded openings during construction or the recreational boating off season. One comment specifically stated that Bayou Liberty is primarily a recreational waterway and several comments referenced residential and recreational use. The Coast Guard agrees that better results will likely result from a test period during a season that better reflects the recreational and residential use of the waterway and as a result issued a new temporary deviation to run from June 1, 2011 through September 9, 2011, to test a revised opening schedule and it was published in Federal Register (76 FR 28311) on May 17, 2011. The current test deviation will provide a record of openings during the spring and summer months, including recreational boating during a couple of holiday weekends. So, the comparison between recorded openings during prior years and recorded openings during the current test period will provide a better representation of the bridge's use and need, specifically during holidays. While one comment mentioned a 12 month test period, the Coast Guard feels that this would be unnecessary and impracticable. As stated above, the current test period will be during the higher traffic season and will be compared to the prior year's recorded openings. Lengthening a test period to 12 months would incorporate lower traffic months already determined to be a poor representation of the bridge's use, unnecessarily delaying an appropriate final opening schedule.

Four comments mention concern with the impact this rule would have on property value if certain vessels are not able to easily transit through the bridge. The Coast Guard understands this concern and the current test deviation will provide a record of the type of traffic using and attempting to use the bridge during the high use season.

Four comments indicated a concern with evacuation during threat of a hurricane or tropical storm. Should emergency evacuation be necessary, the bridge would operate under emergency procedures already in place pursuant to the Code of Federal Regulations, 33 CFR part 117. Specifically, 33 CFR 117.59 states that for the duration of occurrences hazardous to safety or navigation such as floods, freshets and damage to the bridge of fender system, the District Commander may require the owner of an operational drawbridge listed in this sub part to have the bridge attended full time and open on signal. But, 33 CFR 117.33 provides that “[d]raw bridges need not open for the passage of vessels during periods of natural disasters or civil disorders declared by the appropriate authorities unless otherwise provided for or directed to do so by the District Commander.”

Four comments expressed a concern that the two-hour request time was excessive during the day. The Coast Guard agrees and the bridge owner agreed to the new test deviation and this SNPRM proposing a one-hour request time during the day, cutting the request time during the day in half.

Two comments expressed difficulty with reaching the point of contact to request an opening. The Coast Guard contacted the bridge owner, confirming that accurate contact information is posted. The bridge owner also stated that they do periodic tests of the phone system and have never had an issue.

One comment expressed concern that the majority of comments submitted were concerned with large boats and that smaller boat owners are not as concerned about a change in opening procedures because the replacement bridge is high enough to go under. The new test period during a higher traffic season is expected to provide a better representation of the waterway use by boats requiring the bridge to open.

Finally, two comments proposed combining bridge-tender duties with other bridges operating in the vicinity of this bridge and stated that a full-time tender was represented as part of the new bridge. The Coast Guard contacted LDOTD, the bridge owner, and confirmed that LTOTD is considering a solution regarding bridge-tender duties and if they may be combined.

In summary, the time of year that the original NPRM and deviation were issued did not capture a true representation of the bridge's use and how a new operating schedule may impact such use. The original test period was during the winter when vessel traffic was considerably less than the summer months which the new test and comment period will cover.

Based on the limited data received and the aforementioned comments, LDOTD changed their request to modify the requirements for giving notice to open the bridge. Specifically, LDOTD lessened the request time required for opening during the day. This supplemental notice proposes to have the bridge open on signal if at least one-hour notice is given from 7 a.m. to 7 p.m. and two-hour notice is given from 7 p.m. to 7 a.m.

As previously stated, the Coast Guard issued a new temporary deviation to test the newly proposed schedule and it was published in Federal Register (76 FR 28311) on May 17, 2011. The test deviation is scheduled to run from June 1, 2011 through September 9, 2011. During and following completion of the test deviation, the Coast Guard will analyze the data collected from the tender logs and vehicular transits and review the comments received to this SNPRM to determine if the requested modifications to the operating schedule can be made permanent.

The replacement bridge has a vertical clearance of 7.59 feet above the 2% flowline, elevation 2.5 feet (NAVD 1988) in the closed-to-navigation position and unlimited in the open-to-navigation position. In accordance with 33 CFR 117.469, the draw of the S433 Bridge, mile 2.0, at Slidell, shall open on signal, except that between 7 p.m. and 7 a.m., the draw shall open on signal if at least a two-hour notice is given.

Discussion of Proposed Rule

LDOTD is requesting a new regulation to open the bridge on signal with one-hour notice from 7 a.m. to 7 p.m. and with two-hour notice from 7 p.m. to 7 a.m. Presently, the bridge opens on signal, except that between 7 p.m. to 7 a.m., the draw shall open on signal if at least a two-hour notice is given. This rule proposes to change the requirement that a bridge tender open the bridge on signal during the day. The proposed change is to require that the bridge be opened with a one-hour notice during the 7 a.m. to 7 p.m. time period each day. So, the bridge would open within one hour of a mariner calling the number posted at the bridge rather than having a bridge tender present from 7 a.m. to 7 p.m. each day. The area above the bridge site is an area normally transited by local mariners. It is believed that these mariners will be able to contact the bridge owner before their planned departure from their docks. The reason for the requested change in the operation schedule is that a new swing bridge has been constructed with a vertical clearance of 7.59 feet above the 2% flowline, elevation 2.5 feet (NAVD 1988) in the closed-to-navigation position and unlimited in the open-to-navigation. This new bridge replaces a pontoon bridge that required bridge openings for all vessels. LDOTD has indicated that bridge opening requests have decreased significantly and the bridge owner feels that they can maintain a quality level of service without keeping a tender on the bridge at all times.

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 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 that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that those Orders.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.

The public would need to notify the bridge owner of a required opening one hour in advance from 7 a.m. to 7 p.m., rather than on signal. From 7 p.m. to 7 a.m., two-hour notice will be required.

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 proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels needing to transit the bridge between 7 a.m. and 7 p.m. with less than one-hour advance notice.

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 call or e-mail Jim Wetherington; Bridge Administration Branch, Eighth Coast Guard District, telephone [phone], 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 will not call for a 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. § 117.469 is revised to read as follows:

§ 117.469

Liberty Bayou.

The draw of the S433 Bridge, mile 2.0, at Slidell, shall open on signal with a one hour notice from 7 a.m. to 7 p.m. and from 7 p.m. to 7 a.m., two-hour notice will be required, seven days a week.

Dated: March 25, 2011.

Mary E. Landry,

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