[Federal Register: November 30, 2004 (Volume 69, Number 229)]
[Rules and Regulations]
[Page 69529-69531]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30no04-10]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 117
[CGD08-04-010]
RIN 1625-AA09
Drawbridge Operation Regulation; Bayou Portage, Pass Christian,
MS
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is changing the requirements for the operation
of the draw of the Henderson Avenue bascule bridge across Portage
Bayou, mile 2.0 at Pass Christian, MS. The old low-level bascule span
has been removed and the new mid-level bascule span bridge has been
constructed on the same alignment and completed. This final rule
establishes a two-hour notice requirement for an opening of the draw
for the bridge.
DATES: This rule is effective December 30, 2004.
ADDRESSES: Documents referred to in this rule are available for
inspection or copying at the office of the Eighth Coast Guard District,
Bridge Administration Branch, 500 Poydras Street, New Orleans,
Louisiana 70130-3310, between 7 a.m. and 3 p.m., Monday through Friday,
except Federal holidays. The telephone number is (504) 589-2965. The
Eighth District Bridge Administration Branch maintains the public
docket for this rulemaking.
FOR FURTHER INFORMATION CONTACT: Phil Johnson, Bridge Administration
Branch, at (504) 589-2965.
SUPPLEMENTARY INFORMATION:
Regulatory History
On April 1, 2004 we published a notice of proposed rulemaking
(NPRM) entitled Drawbridge Operation Regulation; Bayou Portage, Pass
Christian, MS in the Federal Register [69 FR 17122]. Concurrent with
publishing the NPRM, the Coast Guard published a temporary rule in the
same Federal Register [69 FR 17055] that established a two-hour notice
requirement for an opening of the draw to navigation. The temporary
rule was in effect from April 10, 2004 through October 10, 2004. The
purpose of the temporary rule was to provide interim operating
requirements for the Henderson Avenue bascule span bridge while the
Coast Guard conducted the rulemaking to implement permanent regulations
for the operation of the bridge. We received one letter commenting on
the proposed rule. No public meeting was requested, and none was held.
Background and Purpose
The old Henderson Avenue low-level bascule span bridge across Bayou
Portage at Pass Christian, MS has been demolished and removed and the
new, mid-level bascule span bridge has been constructed on the exact
same alignment. It was opened to vehicular traffic and placed in
service on April 10, 2004. A special operating regulation previously
existed for the old bridge,
[[Page 69530]]
which stated that the draw of the bridge would open on signal if at
least two hours notice was given. When the old bridge was removed, the
special operating regulation was removed. The new bridge would normally
have been required to open on signal as per 33 CFR 117.5. However,
since the new bridge provides significantly greater vertical clearance
in the closed-to-navigation position than the old bridge, it was
anticipated that even fewer navigation openings would be required than
was required for the old bridge and that it is not necessary to have
the bridge manned 24 hours per day, seven days per week. Therefore, the
Harrison County Board of Supervisors requested that the same two-hour
notice for an opening to navigation be required for the new bridge as
was for the old bridge.
During the period the temporary rule has been in effect, an average
of 11 vessels per month required openings for passage through the
bridge. Bridge openings for the months of June, July and August, 2004
are considered valid and were used in this average. The month of
September was discounted due to the passing of several tropical storms
and Hurricane Ivan, which created a highly unusual demand for the
bridge to open for vessels seeking safe harbor in emergency situations.
The average for bridge openings of the old bridge, during the two years
prior to its removal was approximately 64 openings per month. After
evaluating this data, the Coast Guard has determined that it is
unnecessary for a bridge tender to man the bridge 24 hours per day and
that a permanent special drawbridge operating regulation is warranted.
This final rule provides that the draw of the Henderson Avenue
bascule span bridge across Bayou Portage, mile 2.0 at Pass Christian,
MS will open on signal if at least two hours notice is given to the
Harrison County Board of Supervisors.
Discussion of Comments and Changes
One comment was received in response to the NPRM. The U.S. Fish and
Wildlife Service sent a letter dated May 19, 2004 stating that they
have no objection to the proposed special operating regulation. No
changes were made to the proposed regulation.
Regulatory Evaluation
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. It is not ``significant'' under the
regulatory policies and procedures of the Department of Homeland
Security (DHS).
A special operating regulation existed for the old, low-level span
bridge, which required a two-hour notice for an opening of the draw.
During the many years that the old bridge operated under that
regulation, the Coast Guard has not received any complaints regarding
the drawbridge operating schedule. The new bridge has been constructed
on exactly the same alignment as the old bridge. Since the navigational
clearances of the new bridge exceed those of the old bridge the number
of requests for openings were predicted to be fewer. Data collected
during the approximate 3-month test period indicate that this
prediction was accurate. We expect the economic impact of this rule to
be so minimal that a full Regulatory Evaluation under the regulatory
policies and procedures of DHS is unnecessary.
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 have no impact on any small entities because
the regulation will apply to a new bridge, which replaced a bridge on
which the same regulation previously existed.
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 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).
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. No comments were received as a result of the NPRM, relative
to federalism and no changes to the proposed regulation were made.
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 the preamble. No
comments were received as a result of the NPRM, relative to unfunded
mandates and no changes to the proposed regulation were made.
Taking of Private Property
This rule will 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. No comments were received as a result of the NPRM, relative to
the taking of private property and no changes to the proposed
regulation were made.
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. No comments were received as a
result of the NPRM, relative to civil justice reform and no changes to
the proposed regulation were made.
[[Page 69531]]
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 cause an
environmental risk to health or risk to safety that might
disproportionately affect children. No comments were received as a
result of the NPRM, relative to protection of children and no changes
to the proposed regulation were made.
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. No comments were
received as a result of the NPRM, relative to Indian tribal governments
and no changes to the proposed regulation were made.
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. No comments were received as a result of
the NPRM, relative to energy effects and no changes to the proposed
regulation were made.
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 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 there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (32)(e), of the Instruction, from further
environmental documentation. Paragraph (32)(e) excludes the
promulgation of operating regulations or procedures for drawbridges
from the environmental documentation requirements of NEPA. Since this
proposed rule will alter the normal operating conditions of the
drawbridges, it falls within this exclusion. A ``Categorical Exclusion
Determination'' is available in the docket indicated under ADDRESSES.
No comments were received as a result of the NPRM, relative to any
environmental issues and no changes to the proposed regulation were
made.
List of Subjects in 33 CFR Part 117
Bridges.
Regulations
0
For the reasons set out 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; Department of Homeland Security
Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued
under the authority of Pub. L. 102-587, 106 Stat. 5039.
0
2. Section 117.684 is added to read as follows:
Sec. 117.684 Bayou Portage.
The draw of the Henderson Avenue Bridge, mile 2.0, at Pass
Christian, MS shall open on signal if at least two hours notice is
given to the Harrison County Board of Supervisors.
Dated: November 10, 2004.
J.W. Stark
Acting Captain, U.S. Coast Guard, Commander, 8th Coast Guard Dist.
[FR Doc. 04-26338 Filed 11-29-04; 8:45 am]
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