[Federal Register Volume 74, Number 107 (Friday, June 5, 2009)]
[Rules and Regulations]
[Pages 26952-26954]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-13103]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2009-0385]
RIN 1625-AA09


Drawbridge Operation Regulation; Sturgeon Bay Ship Canal, 
Sturgeon Bay, WI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard proposes to temporarily revise the operating 
regulations for the Maple-Oregon Bridge at Mile 4.17 over the Sturgeon 
Bay Ship Canal in Sturgeon Bay, WI. This action was requested by the 
Wisconsin Department of Transportation (Wisconsin DOT) to facilitate 
vehicular traffic in downtown Sturgeon Bay during the rehabilitation of 
the Michigan Street Bridge at Mile 4.30 over the Sturgeon Bay Ship 
Canal. This final rule is expected to reflect the need for bridge 
openings for the Maple-Oregon Bridge during the Michigan Street Bridge 
rehabilitation and still provide for the reasonable needs of 
navigation.

DATES: This temporary final rule is effective from 6 a.m. on June 1, 
2009 to 6 p.m. on November 15, 2010.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket USCG-2009-0385 and are available by 
going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2009-0385 
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 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, Coast Guard Ninth District; telephone 216-902-6086, e-mail: 
<a href="/cdn-cgi/l/email-protection#82d5ebeeeeebe3efacc0acd1f6e3ecebe4e7f0c2f7f1e1e5acefebee"><span class="__cf_email__" data-cfemail="44132d28282d25296a066a1730252a2d22213604313727236a292d28">[email protected]</span></a>. 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 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 because the request to revise the operating 
schedule for this temporary final rule included extensive preliminary 
coordination with known affected marine entities, Wisconsin DOT, and 
the City of Sturgeon Bay, WI, and resulted in a temporary drawbridge 
schedule that would not significantly impact either vehicular traffic 
or known navigation.
    Under 5 U.S.C. 553(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. As noted above the Coast Guard has 
conducted extensive preliminary coordination with known affected marine 
entities, the Wisconsin DOT and the City of Sturgeon Bay, WI and 
determined that the impact on navigation will be minimal as the bridge 
will continue to open on demand for commercial vessels and public 
vessels and on the hour for recreational vessels from March 15 through 
December 31, and from January 1 through March 14, for any vessel 
provided at least notice is given at least 12 hours advance. This is 
the same schedule under which the Michigan Street Bridge currently 
operates under 33 CFR 117.1101. During renovation the Michigan Street 
Bridge will remain in the open position and vehicular traffic is 
expected to use the Maple-Oregon Bridge as an alternate route. Repeated 
openings would likely cause significant congestion on the vehicular 
approaches to the bridge. Hourly openings will allow vehicular traffic 
to plan accordingly and will minimally affect recreational vessels.

Background and Purpose

    Wisconsin DOT requested a temporary change to the operating 
schedule of the Maple-Oregon Bridge at Mile 4.17 over the Sturgeon Bay 
Ship Canal to facilitate the rehabilitation of the Michigan Street 
Bridge. The Maple-Oregon Double-Leaf Bascule Bridge navigation span 
provides for a design clearance of 25 feet above Mean Low

[[Page 26953]]

Water in the closed to navigation position. The waterway carries 
commercial, recreational and public vessel traffic. The bridge is 
normally required to open on signal for vessels year-round under the 
general provisions of 33 CFR 117.5. In order to perform the 
rehabilitation to the Michigan Street Bridge with a minimum of 
disruptions, Wisconsin DOT has requested that the Maple-Oregon Bridge 
be required to open for recreational vessels only on the hour, 24 hours 
a day, seven days a week, between March 15 and December 31. The Maple-
Oregon Bridge will continue to open on demand for commercial and public 
vessels during this period. Between January 1 and March 14, the Maple-
Oregon Bridge will open if notice is provided at least 12 hours in 
advance of a vessel's time of intended passage. As the Michigan Street 
Bridge currently operates under this schedule as outlined in 33 CFR 
117.1101, Wisconsin DOT feels that operating the Maple-Oregon Bridge 
with this schedule will maintain the expectations of the waterway users 
and vehicular traffic while the Michigan Street Bridge is rehabilitated 
in the open to navigation position. The request from Wisconsin DOT also 
included undefined periods of time where the Maple-Oregon Bridge would 
not be required to open for any vessel as work being performed on the 
Michigan Street Bridge would necessitate the occasional, short-term 
closing of the waterway. The dates of these closure periods can not, 
and have not, been identified due to the nature of the work, but 
Wisconsin DOT is required to provide those dates to the Coast Guard 10-
14 days in advance of anticipated closure periods. The Coast Guard will 
issue Broadcast and Local Notices to Mariners covering those dates when 
they have been finalized.

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. This rule is not ``significant'' under 
the regulatory policies and procedures of the Department of Homeland 
Security. The temporary drawbridge schedule still provides for the 
passing of vessels throughout the entire proposed work period. The 
unspecified closure periods, which are necessary for a limited amount 
of rehabilitation work being performed on the Michigan Street Bridge, 
will be published as early as possible in the Ninth Coast Guard 
District Local and/or Broadcast Notice to Mariners prior to the work 
beginning.

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 affect the following entities, some of which 
may be small entities: the owners or operators of recreational vessels 
intending to transit the bridge from 6 a.m. on June 1, 2009 to 6 p.m. 
on November 15, 2010, and marine facilities that provide services for 
recreational vessels. However, this action will not have a significant 
economic impact on a substantial number of small entities for the 
following reasons. The Maple-Oregon Bridge was designed to pass a 
substantial amount of waterway users without the need for an opening. 
Vessels that can safely transit under the bridge may do so at any time. 
The remaining vessels will still be granted openings once an hour on 
the hour, twenty-four hours a day. 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 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.

[[Page 26954]]

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.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
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.


0
2. From 6 a.m. on June 1, 2009 to 6 p.m. on November 15, 2010, 
temporarily add paragraph (c) to Sec.  117.1101 to read as follows:


Sec.  117.1101  Sturgeon Bay.

* * * * *
    (c) The draw of the Maple-Oregon Bridge at Mile 4.17 at Sturgeon 
Bay, shall operate as follows:
    (1) From June 1 through December 31, 2009, and from March 15 
through November 15, 2010 the draw need open for recreational vessels 
only on the hour, 24 hours a day.
    (2) Commercial and Public vessels shall be passed at all times.
    (3) From January 1 through March 14, 2010, the draw shall open on 
signal for all vessels if notice is given at least 12 hours in advance 
of a vessel's intended time of passage.

    Dated: May 18, 2009.
D.R. Callahan,
Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District, 
Acting.
[FR Doc. E9-13103 Filed 6-4-09; 8:45 am]
BILLING CODE 4910-15-P


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