[Federal Register Volume 74, Number 121 (Thursday, June 25, 2009)]
[Rules and Regulations]
[Pages 30225-30227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14946]
[[Page 30225]]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 117
[USCG-2008-1141, formerly CGD11-03-005]
RIN 1625-AA09
Drawbridge Operation Regulations; Connection Slough, Bacon
Island, CA
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is changing the drawbridge operation
regulation governing the operation of the Connection Slough Drawbridge.
This final rule ensures a drawbridge operator can be contacted, is
present at the drawbridge during identified increased navigation
periods, and reduces the hours a drawbridge operator is required to be
at the drawbridge and not gainfully employed. These changes will
continue to provide for the reasonable needs of navigation.
DATES: This rule is effective July 27, 2009.
ADDRESSES: Comments and related materials received from the public, as
well as documents mentioned in this preamble as being available in the
docket, are part of docket USCG- USCG-2008-1141 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-
2008-1141 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 rule,
call or e-mail Mr. David H. Sulouff, Bridge Administrator, Eleventh
Coast Guard District; telephone (510) 437-3516, e-mail
[email protected]. If you have questions on viewing the
electronic docket, call Ms. Renee V. Wright, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On September 22, 2003, the Coast Guard published a Notice of
Proposed Rulemaking (NPRM) entitled Drawbridge Operation Regulations;
Connection Slough, Stockton, CA (68 FR 55020), to adjust the advance
notice procedures for mariners to contact the drawbridge for an
opening. Based on the 220 comments received, the Coast Guard reopened
the comment period on June 18, 2004, with a Supplemental Notice of
Proposed Rulemaking (SNPRM) (69 FR 34100), under the same title, to
explain and reemphasize the continued availability for the drawbridge
to open, with seasonal adjustments to the ``advance notice'' times for
mariners to schedule openings of the bridge. Two non-substantive
comments were received from the SNPRM; however, due to variances
between the bridge owner and the public, the Coast Guard chose to not
move forward with the proposed rule but left the docket open.
At the request of the bridge owner to reassess the proposed rule,
the Coast Guard published another SNPRM on December 1, 2008, (73 FR
72752) using the electronic docket tracking system as USCG-2008-1141.
The comment period concluded on March 2, 2009 with no comments.
Background and Purpose
The drawbridge owner, Central California Redevelopment Company
(CCRC Farms), requested changing the dates and times for advance notice
for drawspan operation at their Reclamation District drawbridge,
crossing Connection Slough between Mandeville and Bacon Islands, near
Stockton, CA. The reason for the proposal was to reduce operating costs
of the drawbridge while continuing to meet the reasonable needs of
vessel traffic. CCRC Farms provided drawbridge operating logs for a
two-year period (2000 to 2002) that documented a significant decrease
in calls for operation of the drawspan from September 16 to May 14,
annually, between the hours of 5 p.m. and 9 a.m. This supported their
request to adjust the existing advance notice period to more closely
match the reduced navigational activity. On September 22, 2003, we
published an NPRM and the information was also published in the Coast
Guard Local Notice to Mariners (LNM), 40/3, dated October 7, 2003. The
Coast Guard received approximately 220 letters and observed at least
two articles in a local publication that objected to a reduced
availability of the drawbridge to open for vessels. The wording in the
NPRM and the LNM did not clearly explain that the drawspan will
continue to be available for passage of vessels on a 24 hour, seven day
per week basis. We addressed those comments in the June 18, 2004 SNPRM
and provided written copies of the SNPRM to the local media and to
those who commented previously, to ensure any replies to our office are
based upon the official proposal. The Coast Guard received two non-
substantive comments regarding the SNPRM. However there remained
conflicting information between the bridge owner and the waterways
users. At that time the Coast Guard chose not to pursue the proposed
schedule until the differing issues could be resolved and chose to
leave the docket open. On July 24, 2008, Tuscany Research Institute and
CCRC Farms provided additional supporting documentation in favor of
revised advance notice drawbridge operation regulation for the bridge
and reinitiated the request for the Coast Guard to evaluate the
proposal. On December 1, 2008, the Coast Guard published an SNPRM in
the Federal Register, proposing adjusted advance notice times for this
drawbridge. The Coast Guard also published the information in the Local
Notice to Mariners for 21 weeks, beginning October 8, 2008 and ending
February 25, 2009.
The existing regulation, 33 CFR 117.150, requires the drawbridge,
from May 1 through October 31, to open on signal between the hours of 6
a.m. and 10 p.m., and from November 1 through April 30, to open on
signal between the hours of 9 a.m. and 5 p.m. All other times the
drawbridge must open on signal if notice is given at least four hours
in advance. All drawbridges are required to open for emergencies as
required by 33 CFR 117.31. It is also important to note that the
existing regulation presently allows the drawbridge owner to operate
the drawbridge with advance notice, during certain dates and times. It
does not allow the drawbridge to remain closed or to obstruct
navigation, when the proper signals to open have been given. Many
comments, received in response to the NPRM, indicated a lack of
understanding of the existing advance notice operation. Therefore, the
Coast Guard will ensure signs are installed, maintained and updated by
the bridge owner, on the upstream and downstream sides of the
drawbridge, in compliance with 33 CFR 117.55, to post the advance
notice schedules, with telephone numbers and point of contact to be
notified for drawbridge operation. Vessel operators are reminded to
adhere to requirements in 33 CFR 117.11 regarding unnecessary opening
of the draw. The Coast Guard periodically reminds bridge owners of
their
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responsibility to provide drawbridge openings for vessels when signals
have been given, and failure to comply may result in significant civil
penalties against the bridge owner. Waterway users are encouraged to
promptly notify the Eleventh Coast Guard District Bridge Office at
(510) 437-3516, if vessel delays are caused by improper operation of
the drawbridge.
Discussion of Comments and Changes
This rule amends 33 CFR 117.150 by revising the current operating
schedule for the Reclamation District No. 2027 bridge across Connection
Slough. This rule extends both the annual date and daily time when the
bridge is allowed to operate under advanced notice.
Comments received from the NPRM are discussed more fully above and
were addressed in the SNPRM dated June 18, 2004. The June 18, 2004
SNPRM received two comments and neither was substantive in regard to
the proposed rule and the 2008 SNPRM received no comments. No public
meeting was requested and none was held.
Regulatory Analysis
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analysis
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 conclusion is based on the fact that these changes have only a
minimal impact on maritime traffic transiting the bridge. Mariners can
schedule bridge openings any time, night or day, any day of the year.
Mariners may also plan their trips to arrive at the drawbridge during
times when a bridge operator is scheduled to be present at the bridge.
Vessels that can pass under the bridge without a bridge opening may do
so at all times.
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
would not have a significant economic impact on a substantial number of
small entities.
This conclusion is based on the fact that the changes will have
only a minimal impact on maritime traffic transiting the bridge.
Mariners can schedule bridge openings any time, night or day, any day
of the year. Mariners may also plan their trips to arrive at the
drawbridge during times when a bridge operator is scheduled to be
present at the bridge. Vessels that can pass under the bridge without a
bridge opening may do so at all times.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), in the SNPRM we offered to
assist small entities in understanding the rule so that they could
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 expenditure, we do
discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This 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 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 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 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
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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 023-01 and Commandant Instruction M16475.lD, which
guide 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 does not
individually or cumulatively have a significant effect on the human
environment. Therefore this rule is categorically excluded, under
section 2.B.2. figure 2-1, paragraph (32)(e), of the Instruction.
Under figure 2-1, paragraph (32)(e), of the Instruction, neither an
environmental analysis checklist nor 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. Revise 33 CFR 117.150 to read as follows:
Sec. 117.150 Connection Slough.
The draw of the Reclamation District No. 2027 bridge between
Mandeville and Bacon Islands, mile 2.5 near Stockton, from May 15
through September 15, shall open on signal between the hours of 9 a.m.
and 5 p.m., and it shall open upon 12 hours advance notice between the
hours of 5 p.m. and 9 a.m.; and from September 16 through May 14 the
draw shall open upon 12 hours advance notice between the hours of 9
a.m. and 5 p.m., and it shall open upon 24 hours advance notice between
the hours of 5 p.m. and 9 a.m. Advance notice shall be given to the
drawbridge operator by telephone at (209) 464-2959 or (209) 464-7928
weekdays between 8 a.m. and 5 p.m., and at (209) 993-8878 all other
times.
Dated: June 8, 2009.
P.F. Zukunft,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard
District.
[FR Doc. E9-14946 Filed 6-24-09; 8:45 am]
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