[Federal Register Volume 69, Number 229 (Tuesday, November 30, 2004)]
[Rules and Regulations]
[Pages 69529-69531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26338]


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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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