E8-29733. Drawbridge Operation Regulations; Wabash River; Activity Identifier; Permanent Change to Operating Schedule

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard moves that the procedures for Operation of Drawbridges across the Wabash River be revised to reflect the needs of navigation. There were no comments or related materials received from the public for the Notice of Final Rulemaking docket number USCG-2008-0100 that preceded this Final Rule.

DATES:

This rule is effective January 15, 2009.

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-2008-0100 and are available online at http://www.regulations.gov. This material is also available for inspection or copying at two locations: 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, and the Eighth Coast Guard District, Bridge Branch, 1222 Spruce Street, Suite 2.107F, St. Louis, MO 63103-2832 between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this final rule, call Mr. Roger Wiebusch, Bridge Administrator, [phone]. If you have questions on viewing the docket, call Ms. Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

Regulatory Information

On May 5, 2008, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Wabash River, IL; Permanent Change to Operating Schedule” in the Federal Register (Vol. 73, No. 87). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

Background and Purpose

The Wabash River is a 475 mile long river in the eastern United States that flows generally southwest from Ohio, through Indiana, to Kentucky. The System rises in the vicinity of St. Henry, Ohio and flows across northern Indiana to Illinois where it forms the southern Illinois-Indiana border before draining into the Ohio River. The Wabash River flows into the Ohio River near Uniontown, Kentucky. The Wabash River drawbridge operation regulations, contained in 33 CFR 117.397, state that all drawbridges shall open on signal if given 72 hours advance notice. The Coast Guard has determined that this regulation is no longer necessary due to the lack of navigation on the river. This action was coordinated with the local marine industry and no objections or concerns were raised.

Discussion of Changes

The changes to 33 CFR 117.397 will reflect the current needs of navigation on the Wabash River. The last request for opening of a drawspan on the Wabash River was in 1991. The U.S. Army Corps of Engineers does not maintain any project depth or navigable channel on the river. Commercial use of the waterway is only possible during periods of high water. During these periods “snag and debris removal” operations are carried out by small commercial vessels that can safely pass beneath all closed drawspans on the waterway.

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.

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

The drawbridges of the Wabash River do not presently open for the passage of vessels due to the lack of navigation on the river. The last recorded opening of a Wabash River drawspan was in 1991. Consultation with bridge owners indicated that currently no bridge on the Wabash River has a bridge tender position assigned to it. Therefore, no jobs will be lost, nor will any forms of commerce be disrupted by the rule.

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 would not have a significant economic impact on a substantial number of small entities. This rule is neutral to all business entities since it only clarifies how the bridges are operated.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they can 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 final 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 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 would not effect 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 5100.1 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 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 rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation.

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. Revise § 117.397 to read as follows:

§ 117.397

Wabash River

The draws of the bridges across the Wabash River need not be opened for the passage of vessels.

Dated: November 24, 2008.

Joel R. Whitehead,

RADM, USCG.