[Federal Register Volume 74, Number 78 (Friday, April 24, 2009)]
[Rules and Regulations]
[Pages 18628-18630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9448]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2009-0132]
RIN 1625-AA09


Drawbridge Operation Regulation; Keweenaw Waterway, Houghton, MI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Commander, Ninth Coast Guard District, has approved a 
temporary deviation from the regulations governing the operation of the 
U.S. 41 (Sheldon Avenue) Lift Bridge, at Mile 16.0, across the Keweenaw 
Waterway, in Houghton, MI. Under this temporary deviation, the U.S. 41 
(Sheldon Avenue) Lift Bridge will be allowed to remain in the closed-
to-navigation position during specific dates and times. The deviation 
is necessary to perform reconstruction to the city streets that access 
the U.S. 41 (Sheldon Avenue) Lift Bridge.

DATES: This temporary final rule is effective from 6 a.m. on April 15, 
2009, to 6 p.m. on November 15, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket, are part of docket USCG-2009-0132 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-2009-0132 
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 two locations: 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 
temporary rule, call or e-mail Blair Stanifer, Bridge Management 
Specialist, Ninth Coast Guard District, at (216) 902-6086, e-mail 
[email protected]. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment

[[Page 18629]]

pursuant to authority under section 4(a) of the Administrative 
Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an 
agency to issue a rule without prior notice and opportunity to comment 
when the agency for good cause finds that those procedures are 
``impracticable, unnecessary, or contrary to the public interest.'' 
Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists 
for not publishing a notice of proposed rulemaking (NPRM) with respect 
to this rule as regular users of the waterway have already been 
identified and the schedule will not significantly impact navigation. 
Navigation on the waterway consists mainly of tugs with tows, charter 
fishing vessels and recreational craft. Commercial and public vessels 
will have unencumbered use of the waterway with the U.S. 41 (Sheldon 
Avenue) Lift Bridge opening on demand. Throughout the effective dates 
of this temporary deviation, the U.S. 41 (Sheldon Avenue) Lift Bridge 
will be in the intermediate position during the construction period, 
providing 31 feet of vertical clearance at all times, giving the 
majority of vessels unencumbered use of the waterway.
    Under 5 U.S.C. 533(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective in less than 30 days after 
publication in the Federal Register. Similar schedules have been used 
in previous maintenance periods on the U.S. 41 (Sheldon Avenue) Lift 
Bridge with no adverse affects on vehicular or maritime traffic.

Background and Purpose

    The Michigan Department of Transportation, on behalf of the City of 
Houghton, MI (who operates this lift-type bridge) requested a temporary 
deviation from the current operating schedule to perform reconstruction 
work on various City of Houghton streets that affect access to and from 
the U.S. 41 (Sheldon Avenue) Lift Bridge.
    The U.S. 41 (Sheldon Avenue) Lift Bridge, at Mile 16.0, over the 
Keweenaw Waterway in Houghton, MI, has a vertical clearance of seven 
feet in the closed-to-navigation position. However, the lift span can 
be stopped at intermediate elevations and will be elevated to give 31-
feet of vertical clearance for the duration of this temporary 
deviation. The bridge normally operates in accordance with 33 CFR 
117.635; opening on signal. However, from January 1 through March 15, 
the draw opens on signal provided at least twenty-four hours notice is 
given.
    This deviation will allow the bridge to stay in the closed-to-
navigation position during peak daily vehicular traffic periods of: 
6:30 a.m. to 8 a.m.; 11:30 a.m. to 1:00 p.m.; and 3:30 p.m. to 5:30 
p.m. Except for these periods of time, openings for recreational 
traffic will be made once, on the hour, if needed. Commercial and 
Public vessels will continue to receive an opening on signal. For the 
duration of this temporary deviation, the U.S. 41 (Sheldon Avenue) Lift 
Bridge will be raised to the intermediate position giving 31-feet of 
vertical clearance. As a result of prior coordination with the waterway 
users and past experience, it has been determined that this temporary 
deviation will not have a significant impact on these vessels as the 
majority will be able to transit safely under the bridge.
    The United States Coast Guard will inform the users of the waterway 
through our Local and Broadcast Notice to Mariners of the opening 
restrictions of the lift span to minimize transiting delays caused by 
the temporary deviation.
    In accordance with 33 CFR 117.35(e), the drawbridge must return to 
its regular operating schedule immediately at the end of the designated 
time period. This deviation from the operating regulations is 
authorized under 33 CFR 117.35.

Discussion of Rule

    The reconstruction of Sheldon Avenue (U.S. 41) in Houghton, MI, 
will necessitate the closing of said route and the redirecting of 
vehicular traffic to other City of Houghton streets. Access to and from 
the bridge will be adversely affected due to the increase in vehicular 
traffic. Restricting the raising of the lift for recreational vessels 
during peak vehicular traffic periods will facilitate traffic flow and 
provide for minimal disruptions to the reconstruction of Sheldon 
Avenue. Navigation users of the waterway consist mainly of tugs with 
tows, commercial fishing vessels and recreational craft. As a result of 
prior coordination with the waterway users and past experience, it has 
been determined that this temporary deviation will not have a 
significant impact on these vessels. A majority will be able to transit 
safely under the bridge since it will be kept raised to an intermediate 
position, providing 31-feet of vertical clearance under the bridge, for 
the duration of the temporary deviation.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
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.

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. However, this rule will affect the following entities, some 
of which may be small entities: the owners or operators of vessels 
intending to transit the bridge from 6:30 a.m. to 8 a.m., 11:30 a.m. to 
1 p.m. and 3:30 p.m. to 5:30 p.m. from April 15, 2009, through November 
15, 2009. This action will not have a significant economic impact on a 
substantial number of small entities for the following reasons. Most 
vessels that use this waterway will still be able to safely pass the 
draw while it is being kept in the intermediate position with 31-feet 
of vertical clearance provided at all times. Openings for all other 
vessels will still be provided on the hour. Commercial and Public 
vessels will continue to receive an opening on signal. Before the 
effective period, we will issue maritime advisories widely available to 
users of the river.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the 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

[[Page 18630]]

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 an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will 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 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.

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.

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 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 concluded 
that this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded, under figure 2-1, 
paragraph (32)(e), of the Instruction.
    Under figure 2-1, paragraph (32)(e), of the Instruction, an 
environmental analysis checklist and 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. From 6 a.m. on April 15, 2009, to 6 p.m. on November 15, 2009, in 
Sec.  117.635, temporarily add paragraphs (a), (b), and (c).


Sec.  117.635  Keweenaw Waterway.

* * * * *
    (a) From April 15 through November 15, from 6 a.m. to 8 a.m., 11:30 
a.m. to 1 p.m. and 3:30 p.m. to 5:30 p.m., seven days a week, the 
bridge shall not be required to open for recreational craft.
    (b) At all other times, the draw of the U.S. 41 Bridge need not be 
opened for the passing of recreational craft except for once an hour, 
on the hour.
    (c) Public vessels of the United States, state or local vessels 
used for public safety, commercial vessels, and vessels in distress 
shall be passed through the draw of the bridge at all times.

    Dated: March 19, 2009.
D.R. Callahan,
Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District, 
Acting.
[FR Doc. E9-9448 Filed 4-23-09; 8:45 am]
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