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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 117
          - [CGD07-04-108]
          - RIN 1625-AA09

# AGENCY:

Coast Guard, DHS.

# ACTION:

Notice of proposed rulemaking.

# SUMMARY:

The Coast Guard proposes to temporarily change the regulations governing the operation of the east and west spans of the Venetian Causeway bridges across the Miami Beach Channel on the Atlantic Intracoastal Waterway, the Miami Avenue bridge and the Brickell Avenue bridge across the Miami River, Miami-Dade County. This proposed rule would allow these bridges to remain in the closed position during the running of the Miami Tropical Marathon on January 30, 2005.

# DATES:

Comments and related material must reach the Coast Guard on or before December 30, 2004.

# ADDRESSES:

You may mail comments and related material to Commander (obr), Seventh Coast Guard District, 909 SE. 1st Ave, Suite 432, Miami, FL 33131-3050. Commander (obr) 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 this docket and will be available for inspection or copying at the Bridge Branch, Seventh Coast Guard District, between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.

# FOR FURTHER INFORMATION CONTACT:

Mr. Gwin Tate, Project Manager, Seventh Coast Guard District, Bridge Branch, 305-415-6747.

# 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 [CGD07-04-108], 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 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 the Bridge Branch, Seventh 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 Miami Marathon Director requested that the Coast Guard temporarily change the existing regulations governing the operation of the east and west spans of the Venetian Causeway bridges, the Brickell Avenue bridge and the Miami Avenue bridge to allow them to remain in the closed position during the running of the Miami Tropical Marathon on Sunday, January 30, 2005. The closure times range from 6:05 a.m. through 12:05 p.m. The marathon route will pass over these four bridges and any bridge opening would disrupt the race. Based on the limited amount of time the bridges would be closed, the proposed rule would still provide for the reasonable needs of navigation on the day of the event.

                    The east and west spans of the Venetian Causeway bridges are located between Miami and Miami Beach. The current regulation governing the operation of the east span of the Venetian Causeway bridge is published in 33 CFR 117.269 and requires the bridge to open on signal; except that, from November 1 through April 30 from                           ( print page 69562)                        7:15 a.m. to 8:45 a.m. and from 4:45 p.m. to 6:15 p.m. Monday through Friday, the draw need not open. However, the draw opens at 7:45 a.m., 8:15 a.m., 5:15 p.m., and 5:45 p.m., if any vessels are waiting to pass. The draw opens on signal on Thanksgiving Day, Christmas Day, New Year's Day and Washington's Birthday. The draw opens at anytime for public vessels of the United States, tugs with tows, regularly scheduled cruise vessels, and vessels in distress. The regulation governing the west span of the Venetian Causeway bridge is published in 33 CFR 117.261 and requires the bridge to open on signal; except that, from November 1 through April 30, Monday through Friday except Federal holidays, from 7 a.m. to 9 a.m. and 4:30 p.m. to 6:30 p.m., the draw need open only on the hour and the half-hour.                

The regulation governing the Miami Avenue bridge, mile 0.3, at Miami, is published at 33 CFR 117.305(c) and requires that the bridge open on signal; except that, from 7:35 a.m. to 8:59 a.m., 12:05 p.m. to 12:59 p.m. and 4:35 p.m. to 5:59 p.m., Monday through Friday, except Federal holidays, the draw need not open for the passage of vessels.

The regulation governing the draw of the Brickell Avenue bridge, mile 0.1, at Miami, is published in 33 CFR 117.305(d) and requires that the bridge open on signal; except that, from 7 a.m. to 7 p.m., Monday through Friday, except Federal holidays, the draw need open only on the hour and half-hour. From 7:35 a.m. to 8:59 a.m., 12:05 p.m. to 12:59 p.m. and 4:35 p.m. to 5:59 p.m., Monday through Friday except Federal holidays, the draw need not open for the passage of vessels.

This proposed rule would not adversely affect the reasonable needs of navigation due to the limited time, six hours, that the bridges would remain in the closed position.

## Discussion of Proposed Rule

The Coast Guard proposes to temporarily change the operating regulations of the east and west spans of the Venetian Causeway bridges, the Miami Avenue bridge and the Brickell Avenue bridge on January 30, 2005. This proposed rule would allow the east span of the Venetian Causeway bridge to remain closed from 6:05 a.m. to 8:40 a.m. on January 30, 2005. The proposed rule would allow the west span of the Venetian Causeway to remain closed from 6:15 a.m. to 9:20 a.m. on January 30, 2005. The Miami Avenue bridge would remain closed from 6:25 a.m. to 10 a.m. on January 30, 2005. The Brickell Avenue bridge would remain closed from 7:10 a.m. to 11:59 a.m. on January 30, 2005. Public vessels of the United States and vessels in distress would be passed at anytime.

## 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 policies and procedures of DHS is unnecessary. The short duration of time during the morning of January 30, 2005, that the bridges would remain in the closed position to facilitate the running of the marathon would have little, if any, economic impact.

## 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 that would require passage through these bridges during the morning hours of January 5, 2005. These vessels would not be able to pass through these bridges during the effective times of this proposed rule. However, due to the limited effective times of this proposed rule and the nominal amount of marine traffic expected during the early and late morning hours on a Sunday at this time of year, this proposed rule would not have a significant economic impact on a substantial number of small entities.

                    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 the person listed in                     **FOR FURTHER INFORMATION CONTACT.**                     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 the preamble.

## Taking of Private Property

This proposed rule will 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 proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation,                           ( print page 69563)                        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 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 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 proposed 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 Check List” and a “Categorical Exclusion Determination” are not required for this rule.

# List of Subjects in 33 CFR Part 117

      - Bridges

## Regulations

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; Department of Homeland Security Delegation No. 0170.1; section 117.255 also issued under authority of Pub. L. 102-587, 106 Stat. 5039.

2. From 6:15 a.m. until 9:20 a.m. on January 30, 2005, in § 117.261, paragraph (nn) is suspended and a new paragraph (tt) is added to read as follows:

§ 117.261

* * * * *

                            (tt)                             *West Span of the Venetian Causeway, mile 1088.6 at Miami.*                             The draw need not open from 6:15 a.m. until 9:20 a.m. on January 30, 2005. Public vessels of the United States and vessels in distress shall be passed at any time.                        

3. From 6:05 a.m. until 8:40 a.m. on January 30, 2005, in § 117.269, temporarily designate the existing regulatory text as paragraph (a); suspend paragraph (a); and add a new paragraph (b) to read as follows:

§ 117.269

* * * * *

(b) The draw of the east span of the Venetian Causeway bridge across Miami Beach Channel need not open from 6:05 a.m. to 8:40 a.m. on January 30, 2005. Public vessels of the United States and vessels in distress shall be passed at any time.

4. From 6:25 a.m. until 10 a.m. on Sunday, January 30, 2005, in § 117.305, paragraphs (c) and (d) are suspended and new paragraphs (e) and (f) are added to read as follows:

§ 117.305

* * * * *

(e) The draw of each bridge from the mouth of the Miami River, to and including the NW. 27th Avenue bridge, mile 3.7 at Miami, except the Miami Avenue and Brickell Avenue bridges, shall open on signal.

(f) The Miami Avenue bridge, across the Miami River, need not open from 6:25 a.m. to 10 a.m. on Sunday, January 30, 2005, and the Brickell Avenue bridge, across the Miami River, need not open from 7:10 a.m. to 12:05 p.m. on Sunday, January 30, 2005. Public vessels of the United States and vessels in an emergency involving danger to life or property shall be passed at any time.

Dated: November 17, 2004.

D. Brian Peterman,

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

[FR Doc. 04-26339 Filed 11-29-04; 8:45 am]

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