Drawbridge Operation Regulation; Bayou Portage, Pass Christian, MS

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to change the operating requirements for the Henderson Avenue bascule span bridge, across Bayou Portage at Pass Christian, Mississippi. Presently, the bridge is required to open on signal. The proposed rule would require that a two-hour advance notice be provided for an opening of the draw to navigation.

DATES:

Comments and related material must reach the Coast Guard on or before June 30, 2004.

ADDRESSES:

You may mail comments and related material to Commander (obc), Eighth Coast Guard District, 500 Poydras Street, New Orleans, Louisiana 70130-3310. The Commander, Eighth Coast Guard District, Bridge Administration Branch maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the Bridge Administration office between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Phil Johnson, Bridge Administration Branch, telephone 504-589-2965.

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD08-04-010], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

Public Meeting

We do not now plan to hold a public meeting. You may submit a request for a meeting by writing to Commander, Eighth Coast Guard District, Bridge Administration Branch at the address under ADDRESSES explaining 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 old low-level Henderson Avenue bascule span bridge, across Bayou Portage at Pass Christian, Mississippi, has been demolished and removed and the new, mid-level bascule span bridge is being constructed on the exact same alignment. The new bridge will be opened to traffic and placed in service on April 10, 2004. The old bridge provided a vertical clearance of 11 feet above mean high water in the closed-to-navigation position and a horizontal clearance of 70 feet between fenders. The replacement mid-level bascule span bridge provides a vertical clearance of 29.5 feet above mean high water in the closed-to-navigation position with a horizontal clearance of 75.5 feet between fenders.

A special operating regulation previously existed for the old bridge, 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. When the new bridge is completed and placed in service, it would normally be required to open on signal as per 33 CFR 117.5.

Since the new bridge provides significantly greater vertical clearance in the closed-to-navigation position than the old bridge, the Harrison County Board of Supervisors predicts that even fewer navigation openings will 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, they have requested that a two-hour notice requirement for an opening to navigation be authorized for the new bridge.

The Coast Guard agrees that the previous opening requirements are appropriate for the new bridge. A temporary rule [CGD08-04-007] is being published elsewhere in today's Federal Register to authorize the proposed schedule for a six-month period from April 10, 2004 through October 10, 2004, to allow the new bridge to operate under the same requirements that existed for the old bridge. The temporary rule provides that during this period, 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. During this period, the Coast Guard is requesting public comments on the effects of the proposed 2-hour notice requirement for openings of the draw to navigation and will gather data on the number of vessels passing through the bridge each day, and the number requiring and not requiring an opening. The Coast Guard will review the data including logs of drawbridge openings and evaluate public comment to help determine if the proposed permanent special drawbridge operating regulation isappropriate.

Navigation at the site of the bridge consists primarily of recreational pleasure craft, including sailing vessels, and tugs with barges in tow which service one concrete facility upstream of the bridge. Alternate routes are not available to marine traffic.

Discussion of Proposed Rule

The proposed rule change to 33 CFR part 117 would require that a two-hour notice be given to the Harrison County Board of Supervisors for the bridge to be opened to navigation.

Regulatory Evaluation

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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security.

A special operating regulation existed for the old bridge, which also required a two-hour notice for an opening of the draw. The Coast Guard did not received any complaints regarding the drawbridge operating schedule for the many years that the old bridge was operated under that regulation. The new replacement bridge provides significantly greater navigation clearances than the old bridge, and the number of openings are predicted to correlate with the increased clearances accordingly. Commercial navigation is expected to be able to move more freely through the new structure. We expect the economic impact of this proposed 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 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 a limited number of small entities. These entities include the operators of vessels, which service a concrete facility, the only business located on Bayou Portage upstream of the bridge. This proposed rule will have no impact on any small entities because the proposed regulation applies to a bridge with greater navigational clearances than the bridge it replaced which had the same regulation before it was removed.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed 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 proposed 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 the Eighth Coast Guard District Bridge Administration Branch at the address above.

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 proposed 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 proposed 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have analyzed this proposed rule under Commandant Instruction M16475.1D, 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 proposed 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.

List of Subjects in 33 CFR Part 117

• Bridges

Regulations

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; 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.

2. Section 117.684 is added to read as follows: