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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 117
          - [Docket No. USCG-2008-0721]
          - RIN 1625-AA09

# AGENCY:

Coast Guard, DHS.

# ACTION:

Final rule.

# SUMMARY:

The Coast Guard is changing the drawbridge operation regulation for the Broadway and Burnside Bridges across the Willamette River, mile 11.7, in Portland, Oregon so that one-hour notice is required from 8 a.m. to 5 p.m. Monday through Friday and two-hour notice at all other times. Also, the Broadway Bridge is deleted as a point of contact for upstream vessels, leaving the Hawthorne Bridge as the point of contact for both upstream and downstream travel directions. These changes are necessary to reduce the staffing requirements for the bridges, which has been made possible by the infrequent number of requests for openings received.

# DATES:

This rule is effective March 6, 2009.

# ADDRESSES:

                        Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2008-0721 and are available online by going to                         *http://www.regulations.gov,*                         selecting the Advanced Docket Search option on the right side of the screen, inserting USCG-2008-0721 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column. 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 Commander (dpw), Thirteenth Coast Guard District, 915 Second Avenue, room 3510, Seattle, WA 98174-1067, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays.                    

# FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call Austin Pratt, Chief, Bridge Section, Waterways Management Branch, Thirteenth Coast Guard District, telephone 206-220-7282. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

# SUPPLEMENTARY INFORMATION:

## Regulatory Information

                    On September 12, 2008, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Willamette River, Portland, OR, Schedule Change in the                     **Federal Register**                     (73 FR 178). We received no public submissions on the proposed rule. No public hearing was requested, and none was held.                

## Background and Purpose

                    The rule enables Multnomah County, the owner of the Broadway Bridge, to operate the draw if at least one hour of notice is provided from 8 a.m. to 5 p.m. Monday through Friday and two hours                           ( print page 5985)                        of notice at all other times. From July 1, 2005, through June 30, 2007, the draw opened 165 times for vessels. This bridge opens on average slightly less than 7 times a month for river traffic. Most vessels that require the Broadway bascule span to open are grain ships, which are piloted by Columbia River Pilots. These ships have typically been able to give several hours notice of arrival as they must navigate over 100 miles of the Columbia River to reach Portland from the Pacific Ocean.                

The operating regulations currently in effect for the Broadway Bridge are found at 33 CFR 117. The drawspan currently operates under the general requirements of 33 CFR 117.897(a)(1) such that it must open on signal for the passage of vessels except that Monday through Friday it need not open from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m. These closed periods are not effective for Federal holidays, except Columbus Day. The Broadway Bridge is the point of contact for upstream or inbound vessels for openings of drawbridges that require advance notice. The rule gives this function to the Hawthorne Bridge, which is the point of contact for vessels traveling downstream.

The bridge provides a minimum of 90 feet of vertical clearance in the closed position above low water (elevation 0.0 feet Portland City Datum). It is considerably higher than other bascule bridges on the Willamette in downtown Portland, which partly explains its low frequency of opening. The horizontal clearance is 250 feet. In the fully open position the bridge allows unlimited vertical clearance over the channel.

The bridge is located on a major arterial in Portland carrying both local and commuter traffic.

The rule restores normal double-leaf operations to the Burnside Bridge, mile 12.4, following a lengthy rehabilitation project.

## Discussion of Proposed Rule

This rule amends 33 CFR 117.897 by revising the current paragraph (c) to add the Broadway Bridge to the bridges for which there is the notice requirement for openings. The point of contact for both upstream and downstream traffic is the Hawthorne Bridge rather than the Broadway and Hawthorne, respectively. The Burnside Bridge is required to operate both leaves per the same schedule.

We received no letters commenting on the proposed rule. No public hearing was requested, and none was held.

## 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. The Coast Guard made this determination based on the fact that most vessel operators can plan their passage in accordance with the closed periods to minimize any impact on their activities.

## 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 rule will predominantly affect grain ships traveling to and from the dock at C.L.D. Pacific Grain immediately upstream of the bridge on the east bank. The pilots of these vessels should be able to provide this notice with no undue burden. The single point of contact for advance notice simplifies the regulation for users.

## 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.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). 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 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 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 does not create an environmental risk to health or risk to safety that may disproportionately affect children.

## Indian Tribal Governments

                    This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination                           ( print page 5986)                        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.

We have analyzed this rule under Department of Homeland Security Directive 0023.1 and Commandant Instruction M16475.1D, which guide 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. Therefore, this rule is categorically excluded, under section 2.B.2. figure 2-1, paragraph 32(e) of the Instruction and neither an environmental assessment nor an environmental impact statement is required. This rule involves the promulgation of operating regulations or procedures for drawbridges.

# 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(g); Department of Homeland Security Delegation No. 0170.1.

2. Amend § 117.897 by revising paragraphs (c) introductory text, (c)(3)(i), and (c)(3) (iii) to read as follows: 

§ 117.897

* * * * *

(c) The draws of the bridges listed in paragraph (c)(3) of this section shall open on signal if appropriate advance notice is given to the drawtender of the Hawthorne Bridge subject to the following requirements and exceptions:

* * * * *

(3)(i) Broadway Bridge, mile 11.7, from 8 a.m. to 5 p.m. Monday through Friday, one hour's notice shall be given for draw openings. At all other times, notice of at least two hours in advance is required.

* * * * *

(iii) Burnside Bridge, mile 12.4, from 8 a.m. to 5 p.m. Monday through Friday, one hour's notice shall be given for draw openings. At all other times, two hours notice is required.

* * * * *

Dated: December 16, 2008.

J.P. Currier,

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

[FR Doc. E9-2311 Filed 2-3-09; 8:45 am]

BILLING CODE 4910-15-P