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 Department of Homeland Security Coast Guard 33 CFR Part 117
[Docket No. USCG-2009-0453]
RIN 1625-AA09
 AGENCY: Coast Guard, DHS.
 ACTION: Notice of proposed rulemaking.
 SUMMARY: The Coast Guard proposes to change the regulations that govern the operation of the US Route 9/Beesleys Point Bridge over Great Egg Harbor Bay, at mile 3.5, between Beesleys Point and Somers Point, NJ. This proposal would allow the drawbridge to operate on an advance notice basis during specific dates and times of the year. The proposed change would result in more efficient use of the bridge during dates and times of infrequent transit.
 DATES: Comments and related material must be received by the Coast Guard on or before August 10, 2009.
 ADDRESSES: You may submit comments identified by docket number USCG-2009-0453 using any one of the following methods: (1) 
                        *Federal Rulemaking 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 Sandra S. Elliott, Bridge Administration Branch, Fifth Coast Guard District, telephone 757-398-6557, e-mail 
                        *Sandra.S.Elliott@uscg.mil*. 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-2009-0453), 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 delivery, or mail your comment, it will be considered as having been 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*, select the Advanced Docket Search option on the right side of the screen, insert “USCG-2009-0453” in the Docket ID box, press Enter, and 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.
                    ( print page 30032) 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,*
                     select the Advanced Docket Search option on the right side of the screen, insert USCG-2009-0453 in the Docket ID column. You may 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 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 for one using one of the four methods specified under 
                    **ADDRESSES**
                    . Please explain 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 Cape May County Department of Public Works (The County) is responsible for the operation of the U.S.  Route 9 Bridge, at mile 3.5, across Great Egg Harbor Bay, between Beesleys Point and Somers Point, NJ. The County requested advance notification for vessel openings during specific dates and times of the year due to the infrequency of requests for vessel openings of the drawbridge. The U.S. Route 9/Beesleys Point Bridge has a vertical clearance of eight feet above mean high water in the closed-to-navigation position. The existing operating schedule is set out in 33 CFR 117.5, which requires the drawbridge to open promptly and fully for the passage of vessels when a request to open is given. Bridge opening data, supplied by the County, revealed minimal requests for vessel openings during periods of time that the County desires to have the bridge unmanned. The numbers of openings vary from a high number of openings during the summer months and a low number of openings during the winter season. Similarly, there are very few opening during the hours of darkness. (See Table) In-Season Bridge Openings—May 15 to September 30
2003
2004
2005
2006
2007
200812 a.m. to 6 a.m
5
6
6
4
4
010 p.m. to 6 a.m
5
10
7
10
10
48 p.m. to 6 a.m
25
22
16
22
18
18
 Off-Season Bridge Openings—October 1 to May 14
2003
2004
2005
2006
2007
200812 a.m. to 6 a.m
2
5
4
1
5
510 p.m. to 6 a.m
4
5
8
1
5
98 p.m. to 6 a.m
5
5
11
3
7
10
 Due to the anticipated infrequency of requests for vessel openings of the drawbridge during these specific times and dates, the County requested to change the current operating regulation by requiring the draw of the bridge to open on signal, except from October 1 to May 14 from 8 p.m. to 6 a.m., and from May 15 to September 30 from 10 p.m. to 6 a.m., need open only if at least two hours notice is given. The County requests an additional change to the operating regulations to allow the U.S.  Route 9/Beesleys Point Bridge to operate on an advance notice on December 24 through December 26 of every year. A review of the bridge logs supplied by the County for the past six years revealed that they have provided only one vessel opening within that time frame. The County requested to change the current operating regulations by requiring the draw span to open on signal if at least two hours notice is given from 8 p.m. on December 24 until and including 6 a.m. on December 26 of every year. This advance notice request coincides with other drawbridges operated by the County for the same dates in December. The Coast Guard believes that all of the proposed changes are reasonable because the drawbridge would still open during specific dates and times after the advance notice is given. The County will install a sign on both faces of the bascule span indicating the hours of operations and a two-hour advance notice when the bridge is unmanned. The sign would also list the County Public Works Department 24-hour telephone number at (609) 368-4591. Discussion of Proposed Rule The Coast Guard proposes to insert new regulations at 33 CFR § 117.722. The draw shall open on signal, except from October 1 through May 14 from 8 p.m. to 6 a.m., from May 15 through September 30, from 10 p.m. to 6 a.m., and from 8 p.m. on December 24 until 6 a.m. on December 26, the draw need open only if at least two hours notice is given. The proposed change would result in more efficient use of the bridge during dates and times of infrequent transit. Regulatory Analyses We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysis based on 13 of these statues 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.
                    ( print page 30033) We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. We reached this conclusion based on the fact that the proposed changes have only a minimal impact on maritime traffic transiting the bridge. Mariners can plan their trips in accordance with the proposed scheduled bridge openings, to minimize delays. 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 needing to transit the bridge from October 1 to May 14 from 8 p.m. to 6 a.m., from May 15 to September 30 from 10 p.m. to 6 a.m., and from 8 p.m. on December 24 until 6 a.m. on December 26. This action will not have a significant economic impact on a substantial number of small entities because the rule only adds minimal restrictions to the movement of navigation, and mariners who plan their transits in accordance with the proposed scheduled bridge openings can minimize delay. 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 Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, (757) 398-6222. The Coast Guard will not retaliate against small entities that question or complain about this proposed 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 this preamble. Taking of Private Property This proposed rule would not affect 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 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 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 made a preliminary determination that this action is one of a category of actions which do no individually or 
                    ( print page 30034)
                    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. Add new § 117.722 to read as follows: § 117.722
  The draw of the US Route 9/Beesleys Point Bridge, mile 3.5, shall open on signal, except from October 1 to May 14 from 8 p.m. to 6 a.m., from May 15 to September 30 from 10 p.m. to 6 a.m., and from 8 p.m. on December 24 until 6 a.m. on December 26, the draw need open only if at least two hours notice is given.
 Dated:June 8,2009. Fred M. Rosa, Jr., Rear Admiral, United States Coast Guard Commander, Fifth Coast Guard District.


[FR Doc. E9-14747 Filed 6-23-09; 8:45 am] BILLING CODE 4910-15-P