05-16285. Drawbridge Operation Regulations; Sturgeon Bay Ship Canal, Sturgeon Bay, WI

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to revise the operating regulations for the Michigan Street Bridge and establish permanent winter operating hours for the Bayview Bridge, both in Sturgeon Bay, WI. The proposed rule is expected to reflect the need for bridge openings during winter months and still provide for the reasonable needs of navigation.

DATES:

Comments and related material must reach the Coast Guard on or before October 3, 2005.

ADDRESSES:

You may mail comments and related material to Commander (obr), Ninth Coast Guard District, 1240 E. 9th Street, Room 2025, Cleveland, OH 44199-2060. The Ninth Coast Guard District maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Commander (obr), Ninth Coast Guard District 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:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD09-05-080), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

Public Meeting

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander (obr), Ninth Coast Guard District, at the address under ADDRESSES explaining 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 Michigan Street Bridge at mile 4.3 over Sturgeon Bay Ship Canal is a single-leaf bascule bridge that provides a vertical clearance of 14 feet in the lowered position. On July 11, 1996, the bridge owner, the Wisconsin Department of Transportation (W-DOT), requested that the bridge be required to open for recreational vessels only on the hour, 24 hours a day, 7 days a week, between March 15 and December 31 of each year in order to reduce wear on the bridge. At that time, the operating regulation governing the bridge provided: From March 15 to December 31 of each year, the bridge was required to open on the hour between 8 a.m. and 6 p.m. for recreational vessels. Between 6 p.m. and 10 p.m., the draw was required to open for recreational vessels no more than on the hour and half-hour, and the bridge opened on signal from 10 p.m. to 8 a.m. From January 1 to March 14 of each year, the bridge was required to open on signal if notice was given at least 12 hours in advance of a vessel's intended time of passage through the draw. Throughout the year, the draw was required to open on signal for commercial vessels and all vessels seeking shelter from severe weather.

To test the requested schedule change, the Coast Guard authorized a temporary deviation from the existing regulation during the summer of 1996. The Coast Guard did not receive any comments, and W-DOT did not report any adverse comments, concerning the temporary deviation.

In February 1997, the Coast Guard published in the Federal Register an Interim rule with request for comments (62 FR 6875, February 14, 1997), which revised the operating regulation to require the bridge to open for recreational vessels only on the hour, 24 hours a day, 7 days a week, between March 15 and December 31 of each year. The requirement for notice at least 12 hours in advance during the winter months remained unchanged. It was intended that the operating requirements applicable between 6 p.m. and 8 a.m., and the provisions related to commercial vessels and vessels seeking shelter from severe weather, located at 33 CFR 117.1101(a)(2), (a)(3), and (b), were to be removed.

Although the removal of those sub-paragraphs was not codified, the bridge has operated according to the provisions of the Interim Rule since the rule's effective date on March 17, 1997. No negative comments concerning this operating schedule have been received.

W-DOT has now requested that the 12-hour advance notice requirement for winter operations be changed from January 1 through March 14 of each year to December 1 through March 14 of each year. The bridge opening logs provided by W-DOT showed a large number of openings during the month of December in 2002, 2003, and 2004, requiring the bridge to maintain full-time bridge tenders throughout the month of December. Based on these records, the Coast Guard concluded that W-DOT's requested change provides for the reasonable needs of navigation.

This proposed rule would make final the provisions of the Interim Rule, which require the Michigan Street Bridge to open between March 15 and December 31 of each year for recreational vessels on the hour, 24 hours a day, and on signal if more than 20 vessels have accumulated at the bridge, or if vessels are seeking shelter from severe weather. From January 1 through March 14 of each year, the bridge would continue to open for vessels if notice is provided at least 12 hours in advance.

There is no current specific drawbridge regulation for the Bayview (State Route 42/57) Bridge, mile 3.0 over Sturgeon Bay Ship Canal. The Bayview Bridge is a twin-leaf bascule drawbridge that provides a vertical clearance of 42 feet when in the lowered position. The drawbridge is currently required to open on signal at all times all year long.

Every year since approximately 1992, the Coast Guard has granted a winter operating schedule, effective from January 1 to March 14, under the provisions of 33 CFR 117.45. W-DOT requested that the Coast Guard implement a permanent winter operating schedule for this drawbridge.

W-DOT requests that the schedule for the Bayview Bridge change to allow it to open for vessels when notice is provided at least 12 hours in advance between December 1 and March 14 of each year. The Coast Guard requested copies of bridge opening logs from W-DOT for the Bayview Bridge. The bridge logs revealed that a total of 9 openings were requested in December 2002, 6 openings in December 2003, and 3 openings in December 2004. The Coast Guard believes that the small number of requested openings at Bayview Bridge during the month of December in the three previous years signifies that the request to require notice at least 12 hours in advance between December 1 and March 14 each year would be reasonable.

Discussion of Proposed Rule

The Coast Guard proposes to revise 33 CFR 117.1101 by making permanent the Michigan Street Bridge schedule that has been implemented since 1997, with a one month extension of the winter operating rules. Between March 15 and December 31 each year, the bridge would open on the hour, 24 hours a day for recreational vessels, and on signal if more than 20 vessels accumulate at the bridge or vessels are seeking shelter from severe weather. All vessels would need to provide notice at least 12 hours in advance between January 1 and March 14 of each year.

A new regulation for Bayview Bridge would be established. The bridge would open on signal at all times for all vessels between March 15 and November 30 of each year. All vessels would need to provide notice at least 12 hours in advance between December 1 and March 14 of each year.

Regulatory Evaluation

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

The Coast Guard expects minimal public impact from the proposed schedule. The operating hours for recreational vessels at Michigan Street Bridge between March 15 and December 31 has been in place since 1997 with no known adverse effects. The proposed winter operating schedule for both the Michigan Street and Bayview Bridges would continue to provide openings for vessels with 12-hours advance notice.

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 schedule for Michigan Street Bridge is identical to the schedule that has been in place since 1997, with no significant economic impacts reported to the Coast Guard by any entities. The Bayview Bridge schedule provides openings at all times between March 15 and November 30. Most recreational vessels do not operate past November 30. The winter schedule provides openings with 12-hours advance notice for all commercial operators.

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

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 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 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 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 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 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 proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation.

List of Subjects in 33 CFR Part 117

• Bridges

Regulations

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; 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. Revise section 117.1101 to read as follows:

§ 117.1101

Sturgeon Bay.

(a) The draw of the Michigan Street Bridge, mile 4.3 at Sturgeon Bay, shall open as follows:

(1) From March 15 through December 31, the draw need open on signal for recreational vessels only on the hour, 24 hours a day. However, if more than 20 vessels have accumulated at the bridge, or vessels are seeking shelter from severe weather, the bridge shall open on signal.

(2) From January 1 through March 14, the draw shall open on signal if notice is given at least 12 hours in advance of a vessel's time of intended passage.

(b) The draw of the Bayview (SR 42/57) Bridge, mile 3.0 at Sturgeon Bay, shall open as follows:

(1) From March 15 through November 30, the draw shall open on signal.

(2) From December 1 through March 14, the draw shall open on signal if notice is given at least 12 hours in advance of a vessel's time of intended passage.

Dated: July 25, 2005.

R.J. Papp, Jr.,

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