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###### Department of Homeland Security

###### Coast Guard

          - 33 CFR Part 117
          - [Docket No. USCG-2009-0132]
          - RIN 1625-AA09

# AGENCY:

Coast Guard, DHS.

# ACTION:

Temporary final rule.

# SUMMARY:

The Commander, Ninth Coast Guard District, has approved a temporary deviation from the regulations governing the operation of the U.S. 41 (Sheldon Avenue) Lift Bridge, at Mile 16.0, across the Keweenaw Waterway, in Houghton, MI. Under this temporary deviation, the U.S. 41 (Sheldon Avenue) Lift Bridge will be allowed to remain in the closed-to-navigation position during specific dates and times. The deviation is necessary to perform reconstruction to the city streets that access the U.S. 41 (Sheldon Avenue) Lift Bridge.

# DATES:

This temporary final rule is effective from 6 a.m. on April 15, 2009, to 6 p.m. on November 15, 2009.

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket, are part of docket USCG-2009-0132 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-2009-0132 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.                    

# FOR FURTHER INFORMATION CONTACT:

                        If you have questions on this temporary rule, call or e-mail Blair Stanifer, Bridge Management Specialist, Ninth Coast Guard District, at (216) 902-6086, e-mail                         *William.B.Stanifer@uscg.mil.*                         If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.                    

# SUPPLEMENTARY INFORMATION:

## *Regulatory Information*

                    The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment                           ( print page 18629)                        pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule as regular users of the waterway have already been identified and the schedule will not significantly impact navigation. Navigation on the waterway consists mainly of tugs with tows, charter fishing vessels and recreational craft. Commercial and public vessels will have unencumbered use of the waterway with the U.S. 41 (Sheldon Avenue) Lift Bridge opening on demand. Throughout the effective dates of this temporary deviation, the U.S. 41 (Sheldon Avenue) Lift Bridge will be in the intermediate position during the construction period, providing 31 feet of vertical clearance at all times, giving the majority of vessels unencumbered use of the waterway.                

Under 5 U.S.C. 533(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register. Similar schedules have been used in previous maintenance periods on the U.S. 41 (Sheldon Avenue) Lift Bridge with no adverse affects on vehicular or maritime traffic.

## Background and Purpose

The Michigan Department of Transportation, on behalf of the City of Houghton, MI (who operates this lift-type bridge) requested a temporary deviation from the current operating schedule to perform reconstruction work on various City of Houghton streets that affect access to and from the U.S. 41 (Sheldon Avenue) Lift Bridge.

The U.S. 41 (Sheldon Avenue) Lift Bridge, at Mile 16.0, over the Keweenaw Waterway in Houghton, MI, has a vertical clearance of seven feet in the closed-to-navigation position. However, the lift span can be stopped at intermediate elevations and will be elevated to give 31-feet of vertical clearance for the duration of this temporary deviation. The bridge normally operates in accordance with 33 CFR 117.635; opening on signal. However, from January 1 through March 15, the draw opens on signal provided at least twenty-four hours notice is given.

This deviation will allow the bridge to stay in the closed-to-navigation position during peak daily vehicular traffic periods of: 6:30 a.m. to 8 a.m.; 11:30 a.m. to 1:00 p.m.; and 3:30 p.m. to 5:30 p.m. Except for these periods of time, openings for recreational traffic will be made once, on the hour, if needed. Commercial and Public vessels will continue to receive an opening on signal. For the duration of this temporary deviation, the U.S. 41 (Sheldon Avenue) Lift Bridge will be raised to the intermediate position giving 31-feet of vertical clearance. As a result of prior coordination with the waterway users and past experience, it has been determined that this temporary deviation will not have a significant impact on these vessels as the majority will be able to transit safely under the bridge.

The United States Coast Guard will inform the users of the waterway through our Local and Broadcast Notice to Mariners of the opening restrictions of the lift span to minimize transiting delays caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

## Discussion of Rule

The reconstruction of Sheldon Avenue (U.S. 41) in Houghton, MI, will necessitate the closing of said route and the redirecting of vehicular traffic to other City of Houghton streets. Access to and from the bridge will be adversely affected due to the increase in vehicular traffic. Restricting the raising of the lift for recreational vessels during peak vehicular traffic periods will facilitate traffic flow and provide for minimal disruptions to the reconstruction of Sheldon Avenue. Navigation users of the waterway consist mainly of tugs with tows, commercial fishing vessels and recreational craft. As a result of prior coordination with the waterway users and past experience, it has been determined that this temporary deviation will not have a significant impact on these vessels. A majority will be able to transit safely under the bridge since it will be kept raised to an intermediate position, providing 31-feet of vertical clearance under the bridge, for the duration of the temporary deviation.

## 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.

## 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. However, this rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit the bridge from 6:30 a.m. to 8 a.m., 11:30 a.m. to 1 p.m. and 3:30 p.m. to 5:30 p.m. from April 15, 2009, through November 15, 2009. This action will not have a significant economic impact on a substantial number of small entities for the following reasons. Most vessels that use this waterway will still be able to safely pass the draw while it is being kept in the intermediate position with 31-feet of vertical clearance provided at all times. Openings for all other vessels will still be provided on the hour. Commercial and Public vessels will continue to receive an opening on signal. Before the effective period, we will issue maritime advisories widely available to users of the river.

## Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can 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                           ( print page 18630)                        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 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 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 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 0023.1 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 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. From 6 a.m. on April 15, 2009, to 6 p.m. on November 15, 2009, in § 117.635, temporarily add paragraphs (a), (b), and (c). 

§ 117.635 

* * * * *

(a) From April 15 through November 15, from 6 a.m. to 8 a.m., 11:30 a.m. to 1 p.m. and 3:30 p.m. to 5:30 p.m., seven days a week, the bridge shall not be required to open for recreational craft.

(b) At all other times, the draw of the U.S. 41 Bridge need not be opened for the passing of recreational craft except for once an hour, on the hour.

(c) Public vessels of the United States, state or local vessels used for public safety, commercial vessels, and vessels in distress shall be passed through the draw of the bridge at all times.

Dated: March 19, 2009.

D.R. Callahan,

Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District, Acting.

[FR Doc. E9-9448 Filed 4-23-09; 8:45 am]

BILLING CODE 4910-15-P