[Federal Register Volume 75, Number 102 (Thursday, May 27, 2010)]
[Proposed Rules]
[Pages 29693-29695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12737]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2009-0803]
RIN 1625-AA09


Drawbridge Operation Regulation; Oakland Inner Harbor Tidal 
Canal, Oakland/Alameda, CA, Schedule Change

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to modify the drawbridge operation 
regulation for the Alameda County and the Army Corps of Engineers owned 
drawbridges across Oakland Inner Harbor Tidal Canal, between Oakland 
and Alameda, California so that four hours advance notice for openings 
would be required from the waterway user to the bridge owner, between 
the hours 4:30 p.m. and 9 a.m. daily. With the exception of Federal 
Holidays, openings at all other times would be on signal except during 
interstate rush hours, 8 a.m. to 9 a.m. and 4:30 p.m. to 6:30 p.m., 
Monday through Friday, when the drawbridges need not be opened for 
vessels. However, the draws would open during the above closed periods 
for vessels which must, for reasons of safety, move on a tide or slack 
water, if at least four hours advance notice is given. The proposed 
rule is requested by Alameda County to reduce the bridge staffing 
requirements during periods of reduced openings.

DATES: Comments and related material must reach the Coast Guard on or 
before August 25, 2010.

ADDRESSES: You may submit comments identified by the Coast Guard docket 
number USCG-2009-0803 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these methods. See the 
``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section below for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail David H. Sulouff, Chief, Bridge Section, Waterways 
Management Branch, 11th Coast Guard District, telephone 510-437-3516, 
e-mail address <a href="/cdn-cgi/l/email-protection#3f7b5e49565b1177116c4a53504a59597f6a6c7c7811525653"><span class="__cf_email__" data-cfemail="bbffdacdd2df95f395e8ced7d4ceddddfbeee8f8fc95d6d2d7">[email protected]</span></a>. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0803), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (http://www.regulations.gov), or by fax, mail or hand delivery, 
but please use only one of these means. If you submit a comment online 
via http://www.regulations.gov, it will be considered received by the 
Coast Guard when you successfully transmit the comment. If you fax, 
hand deliver, or mail your comment, it will be considered received by 
the Coast Guard when it is received at the Docket Management Facility. 
We recommend that you include your name and a mailing address, an e-
mail address, or a phone number in the body of your document so that we 
can contact you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rules'' and insert ``USCG-2009-0803'' in the ``Keyword'' 
box. Click ``Search'' then click on the balloon shape in the 
``Actions'' column. If you submit your comments by mail or hand 
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 
inches, suitable for copying and electronic filing. If you submit them 
by mail and would like to know that they reached the Facility, please 
enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period 
and may change the rule based on your comments.
    A request for comments has been published in the Coast Guard Local 
Notice to Mariners. All comments received will be included for the 
record in the electronic docket ``USCG-2009-0803''.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert `` USCG-2009-0803'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit either the Docket Management Facility in Room W12-
140 on the ground floor of the Department of Transportation West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. We 
have an agreement with the Department of Transportation to use the 
Docket Management Facility.

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting, but you may submit a 
request using one of the four methods under ADDRESSES. Please explain 
why one would be beneficial. If we determine that one would aid this 
rulemaking, we

[[Page 29694]]

will hold one at a time and place announced by a later notice in the 
Federal Register.

Background and Purpose

    The proposed rule would change the existing regulation. The 
existing regulation is found at 33 CFR 117.181 and delineates the 
following operating scheme: The draws of the Alameda County highway 
drawbridges at Park Street, mile 5.2; Fruitvale Avenue, mile 5.6; and 
High Street, mile 6.0; and the U.S. Army Corps of Engineers railroad 
drawbridge, mile 5.6 at Fruitvale Avenue, shall open on signal; except 
that, from 8 a.m. to 9 a.m. and 4:30 p.m. to 6:30 p.m. Monday through 
Friday except Federal holidays, the draws need not be opened for the 
passage of vessels. However, the draws shall open during the above 
closed periods for vessels which must, for reasons of safety, move on a 
tide or slack water, if at least two hours notice is given.
    The proposed rule is requested by Alameda County to reduce the 
bridge staffing requirements during periods of reduced openings. The 
proposed rule is as follows: The draws of the Alameda County highway 
drawbridges at Park Street, mile 5.2; Fruitvale Avenue, mile 5.6; and 
High Street, mile 6.0; and the U.S. Army Corps of Engineers railroad 
drawbridge, mile 5.6 at Fruitvale Avenue, shall open on signal between 
the hours of 9 a.m. and 4:30 p.m. and upon 4 hours advance notice 
between the hours 4:30 p.m. and 9 a.m. During Interstate rush hours, 8 
a.m. to 9 a.m. and 4:30 p.m. to 6:30 p.m., Monday through Friday, 
except Federal holidays, the draws need not be opened for the passage 
of vessels. However, the draws shall open during the above rush hour 
periods for vessels which must, for reasons of safety, move on a tide 
or slack water, if at least four hours notice is given to the bridge 
owner. For the four hour advance notice requirement, waterway users may 
contact the Fruitvale Avenue drawbridge operator via telephone at (510) 
533-7858 or VHF-FM marine radio, or by contacting the bridge operator 
during daytime bridge operating hours.
    In support of their request for the regulation change, Alameda 
County provided the operating logs from the drawbridges to demonstrate 
a decrease in drawbridge openings for vessels over at least a 2 year 
period of time. The material submitted by the bridge owner will be 
entered in the electronic docket for the record.
    The waterway traffic at this location is comprised of commercial, 
recreational, search and rescue, law enforcement and disaster response 
vessels, and if necessary dredging, construction and salvage equipment, 
presently capable of circumnavigating the island of Alameda, CA, 
contingent upon tidal influences and vessel drafts. The Oakland Inner 
Harbor Tidal Canal is a lateral extension of San Francisco Bay.

Discussion of Proposed Rule

    The Coast Guard proposes to amend 33 CFR part 117 by amending Sec.  
117.181 for the Oakland Inner Harbor Tidal Canal. In addition to the 
existing rush hour periods when the drawbridges need not open for 
vessels, the revised language of the section would require the bridges 
to open on signal between the hours of 4:30 p.m. and 9 a.m daily, 
provided four hours advance notice is given from vessel operators to 
Alameda County for drawbridge operation. For the four hour advance 
notice requirement, waterway users may contact the Fruitvale Avenue 
drawbridge operator via telephone at (510) 533-7858 or VHF-FM marine 
radio, or by contacting the bridge operator during daytime bridge 
operating hours. This would include vessels which must, for reasons of 
safety, move on a tide or slack water. At all other times the 
drawbridges will be required to open on signal for the safe passage of 
vessels.
    The Coast Guard policy regarding the promulgation of drawbridge 
operation regulations requires that no regulation shall be implemented 
for the sole purpose of saving the bridge owner the cost to operate a 
bridge, nor to save wear and tear mechanically on a bridge. It is the 
bridge owner's statutory and regulatory responsibility to provide the 
necessary drawbridge tenders for the safe and prompt opening of a 
bridge and to maintain drawbridges in good operating condition.

Regulatory Analyses

    We developed this proposed 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 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. This conclusion is based 
upon the fact that the proposed drawbridge regulation change would only 
implement the advance notice times for bridge openings between the 
hours of 4:30 p.m. and 9 a.m. and for vessels which must, for reasons 
of safety, move on a tide or slack water, and the navigational impacts 
would be negligible. The Coast Guard determination to approve or deny 
the bridge owners request will be based upon the ability of the 
proposed regulation to meet the reasonable needs of navigation and not 
the cost to the bridge owner. A test of the proposed drawbridge 
operating regulation may be used by the Coast Guard to evaluate the 
actual impacts, during the appropriate navigational season timeframe, 
prior to making a final determination on the proposal.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast 
Guard must consider 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 requests comments to determine if this proposed 
rule would 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 David Sulouff, Chief, Bridge 
Section, Waterways Management Branch, 11th Coast Guard District, at 
(510) 437-3516. 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.

[[Page 29695]]

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 this 
preamble.

Taking of Private Property

    This proposed 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 proposed 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 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 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 Information and Regulatory Affairs has 
not designated this 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 Department of Homeland 
Security Management Directive 023-01, 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 made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment because it simply 
promulgates the operating regulations or procedures for drawbridges. We 
seek any comments or information that may lead to the discovery of a 
significant environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to 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; Department of Homeland 
Security Delegation No. 0170.1.

    2. Revise Sec.  117.181 to read as follows:


Sec.  117.181  Oakland Inner Harbor Tidal Canal.

    The draws of the Alameda County highway drawbridges at Park Street, 
mile 5.2; Fruitvale Avenue, mile 5.6; and High Street, mile 6.0; and 
the U.S. Army Corps of Engineers railroad drawbridge, mile 5.6 at 
Fruitvale Avenue, shall open on signal between the hours of 9 a.m. and 
4:30 p.m. and upon 4 hours advance notice between the hours 4:30 p.m. 
and 9 a.m. During Interstate rush hours, 8 a.m. to 9 a.m. and 4:30 p.m. 
to 6:30 p.m., Monday through Friday, except Federal holidays, the draws 
need not be opened for the passage of vessels. However, the draws shall 
open during the above rush hour periods for vessels which must, for 
reasons of safety, move on a tide or slack water, if at least four 
hours notice is given to the bridge owner. For the four hour advance 
notice requirement; waterway users may contact the Fruitvale Ave 
drawbridge operator via telephone at (510) 533-7858 or VHF-FM marine 
radio, or by contacting the bridge operator during daytime bridge 
operating hours.

    Dated: May 12, 2010.
J.R. Castillo,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard 
District.
[FR Doc. 2010-12737 Filed 5-26-10; 8:45 am]
BILLING CODE 9110-04-P


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