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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 117
          - [CGD05-04-169]
          - RIN 1625-AA09

# AGENCY:

Coast Guard, DHS.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Coast Guard proposes to change the regulations that govern the operation of the Route 13/Lovelandtown Bridge across Point Pleasant Canal, at New Jersey Intracoastal Waterway (NJICW) mile 3.9, in Point Pleasant, NJ. The bridge will be closed to navigation beginning 8 a.m. on January 3, 2005, through 5 p.m. on March 31, 2005. This closure is necessary to facilitate extensive mechanical rehabilitation and to maintain the bridge's operational integrity.

# DATES:

Comments and related material must reach the Coast Guard on or before December 28, 2004.

# ADDRESSES:

You may mail comments and related material to Commander (obr), Fifth Coast Guard District, Federal Building, 4th Floor, 431 Crawford Street, Portsmouth, Virginia 23704-5004, or they may be hand delivered to the same address between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The Commander (obr), Fifth 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 the above address.

# FOR FURTHER INFORMATION CONTACT:

Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, at (757) 398-6222.

# 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 CGD05-04-169, 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 8                    1/2                     by 11 inches, suitable for copying. If you would like confirmation to know if they were received, 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 those comments.                

## Public Meeting

                    We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the Commander, Fifth 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 at a place announced by a later notice in the                     **Federal Register**                    .                

## Background and Purpose

                    The New Jersey Department of Transportation (NJDOT) owns and operates the vertical-lift span of the Route 13/Lovelandtown Bridge across Point Pleasant Canal, in Point Pleasant, New Jersey. The bridge has a vertical clearance in the closed and full open position of 30 feet and 65 feet, at mean high water, respectively. The current regulations are outlined under the general regulations at 33 CFR 117.5,                           ( print page 63110)                        which require the bridge to open on signal.                

Carr & Duff, Inc., (the contractor), on behalf of NJDOT, has requested a change to the existing regulations for the Route 13/Lovelandtown Bridge to facilitate necessary repairs. The repairs consist of the reinstallation of the motor, brakes and new electrical gear and control systems of the bridge. To facilitate the repairs, the vertical-lift span of the drawbridge will be locked in the closed-to-navigation position from 8 a.m. on January 3, 2005, through 5 p.m. on March 31, 2005.

The Coast Guard reviewed the bridge logs. The logs revealed for the months of January, February and March 2004, the bridge opened for vessels 5, 2, and 9 times, respectively. Vessel operators with mast height lower than 30 feet still can transit thorough the drawbridge across Point Pleasant Canal during the rehabilitation. With 24 hours advance notice, the contractor will provide a bridge opening between the hours of 9 a.m. and 2 p.m. Monday through Friday for vessels with mast height greater than 30 feet requiring an opening of draw span during the proposed closure period. Calling the Bridge Operations Office at (732) 528-9494 or the contractor at (215) 416-1235 will provide for advance opening requests. Also, the Atlantic Ocean is an alternate route for vessels with a mast height greater than 30 feet. Therefore, vessels should not be negatively impacted by this proposal.

## Discussion of Proposed Rule

The Coast Guard proposes to amend the regulations governing the Route 13/Lovelandtown Bridge across Point Pleasant Canal, ICW mile 3.9, which currently opens on signal. The Coast Guard proposes to temporarily amend 33 CFR 117.733 by adding a new paragraph (c) which would contain the operating schedule for the Route 13/Lovelandtown Bridge across Point Pleasant Canal, ICW mile 3.9, in Point Pleasant. This proposed rule would allow the bridge to remain closed to navigation from 8 a.m. on January 5, 2005, to 5 p.m. on March 31, 2005, and the advance notice condition for opening the bridge. Upon completion of the repairs, the bridge would return to the current operating schedule.

## 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.

We reached this conclusion based on the fact that the proposed changes have only a minimal impact on maritime traffic transiting the bridge. Vessel operators with mast height lower than 30 feet still can transit thorough the drawbridge across Point Pleasant Canal during the rehabilitation. For vessels with mast height greater than 30 feet requiring an opening of draw span during the proposed closure period, the contractor will provide a bridge opening between the hours of 9 a.m. and 2 p.m. Monday through Friday if requested 24 hours in advance. Also, the Atlantic Ocean is an alternate route for vessels with a mast height greater than 30 feet.

## 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 not have a significant economic impact on a substantial number of small entities because vessels with mast height greater than 30 feet requiring an opening of draw span during the proposed closure period, the contractor will provide a bridge opening between the hours of 9 a.m. and 2 p.m. Monday through Friday if requested with 24 hours in advance. This should not prove to be problematic to commercial operations because they normally schedule the movement of their equipment well in advance. Vessel operators with mast height lower than 30 feet still can transit thorough the drawbridge. Also, the Atlantic Ocean is an alternate route for vessels with a mast height greater than 30 feet.

                    If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed 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 (Public Law 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 process. 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 Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, (757) 398-6222.

## 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 would 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                           ( print page 63111)                        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 security 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 M16475.1D, 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.

# List of Subjects in 33 CFR Part 117

      - Bridges

## Regulations

For the reasons discussed in the preamble, the Coast Guard proposes to temporarily 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(g); Department of Homeland Security Delegation No. 0170.1; section 117.255 also issued under the authority of P.L. 102-587, 106 Stat. 5039.

2. From 8 a.m. on January 3, 2005, through 5 p.m. on March 31, 2005, add a new temporary paragraph (l) to § 117.733 to read as follows:

§ 117.733 

* * * * *

(l) The draw of the Route 13/Lovelandtown Bridge across Point Pleasant Canal, at mile 3.9, at Point Pleasant, need not be opened for the passage of vessels from 8 a.m. on January 3, 2005, through 5 p.m. on March 31, 2005. However, between 9 a.m. to 2 p.m. Monday to Friday, the draw shall open on signal if at least 24 hours advance notice is given by calling (732) 528-9494 or (215) 416-1235.

Dated: October 19, 2004.

Sally Brice-O'Hara,

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

[FR Doc. 04-24255 Filed 10-28-04; 8:45 am]

BILLING CODE 4910-15-P