2010-20922. Drawbridge Operation Regulation; Taunton River, Fall River and Somerset, MA

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard has changed the drawbridge operation regulations that govern the operation of the Brightman Street (Rt-6) Bridge at mile 1.8, across the Taunton River between Fall River and Somerset, Massachusetts. This final rule will help relieve the bridge owner from the burden of crewing the bridge at times when there have been few requests to open the bridge. In addition, we are also removing some obsolete language from the regulations, the operation regulations for the Bristol County Bridge at mile 10.3, because that bridge has subsequently been replaced with a fixed highway bridge.

DATES:

This rule is effective September 23, 2010.

ADDRESSES:

Comments and related materials received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2010-0234 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0234 in the “Keyword” box, and then clicking “Search.” This material is also available for inspection or copying at the 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or e-mail Mr. John W. McDonald, Project Officer, First Coast Guard District Bridge Branch, 617-223-8364, [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On June 8, 2010, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations Taunton River in the Federal Register (75 FR 32351). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Basis 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.

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

Discussion of Comments and Changes

The Coast Guard received no comments in response to the notice of proposed rulemaking. As a result, no changes have been made to this final rule.

Regulatory Analyses

We developed this 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, 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 final rule 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 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 conclusion is based upon the fact that 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.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

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 (adjusted for inflation) 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 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 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 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 concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

List of Subjects in 33 CFR Part 117

• Bridges

For the reasons discussed 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; 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.

(e) 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 § 118.160 of this chapter.

Dated: August 10, 2010.

Daniel A. Neptun,

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