[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Proposed Rules]
[Pages 76324-76328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30739]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2010-1030]
RIN 1625-AA09


Drawbridge Operation Regulation; Duluth Ship Canal, Duluth-
Superior Harbor, MN

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to establish a drawbridge opening 
schedule for the Duluth Aerial Lift Bridge for vessels under 300 gross 
tons. Scheduled drawbridge openings were requested by various local 
entities to help reduce traffic congestion near the drawbridge during 
the peak navigation and tourist season. The scheduled drawbridge 
openings are expected to improve traffic congestion in the area and 
enhance safety for all modes of transportation.

DATES: Comments and related material must reach the Coast Guard on or 
before January 7, 2011.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-1030 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the

[[Page 76325]]

``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section below for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail Mr. Lee Soule, Bridge Management Specialist, Ninth 
Coast Guard District; telephone (216) 902-6085, e-mail 
[email protected]. If you have questions on viewing or submitting 
material to the docket, call Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2010-1030), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (http://www.regulations.gov), or by fax, mail or hand delivery, 
but please use only one of these means. If you submit a comment online 
via http://www.regulations.gov, it will be considered received by the 
Coast Guard when you successfully transmit the comment. If you fax, 
hand deliver, or mail your comment, it will be considered as having 
been received by the Coast Guard when it is received at the Docket 
Management Facility. We recommend that you include your name and a 
mailing address, an e-mail address, or a phone number in the body of 
your document so that we can contact you if we have questions regarding 
your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rules'' and insert ``USCG-2010-1030'' in the ``Keyword'' 
box. Click ``Search'' then click on the balloon shape in the 
``Actions'' column. If you submit your comments by mail or hand 
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 
inches, suitable for copying and electronic filing. If you submit them 
by mail and would like to know that they reached the Facility, please 
enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period 
and may change the rule based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2010-1030'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain 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.

Basis and Purpose

    The Duluth Aerial Bridge is located 0.25 miles from Duluth Harbor 
North Pier Light at the lakeward end of the Duluth Ship Canal. It is a 
vertical lift type bridge that provides 15 feet of vertical clearance 
in the down position and up to 141 feet in the open position. The 
bridge currently opens on signal for all vessel traffic that requires a 
bridge opening. Marine traffic on the waterway consists of large 
commercial vessels, smaller commercial vessels, and both power and sail 
recreational vessels.
    Various entities in Duluth that requested the scheduled openings 
included: City of Duluth, Duluth Fire Department-Emergency Management, 
Duluth Police Department, Park Point Community Association, and Canal 
Park Business Association. The scheduled drawbridge openings were 
requested during the peak navigation and tourist season to improve the 
flow of vehicular traffic over the bridge, relieve vehicular traffic 
congestion near the bridge and on city streets on both sides of the 
bridge (Park Point and Canal Park), improve access and response times 
for emergency response entities, and enhance pedestrian safety in the 
vicinity of the bridge.
    Commander, Ninth Coast Guard District, approved a temporary 
deviation from regulations, with request for comments, that was 
published in the April 22, 2010, issue of the Federal Register (75 FR 
20918). The temporary deviation was constructed to be used as a test 
bridge schedule during the 2010 navigation and tourist season. The test 
schedule allowed for scheduled bridge openings on the hour and half-
hour for all vessels under 300 gross tons between the hours of 6 a.m. 
and 9 p.m., seven days per week, and on signal between 9 p.m. and 6 
a.m., from May 3 to October 29, 2010. The bridge continued to open at 
all times for all vessels over 300 gross tons and Federal, State, and 
local government vessels, vessels in distress, commercial vessels 
engaged in rescue or emergency salvage operations, vessels engaged in 
pilot duties, and vessels seeking shelter from severe weather. Written 
comments regarding the test schedule were solicited throughout the 
period.
    The Coast Guard received four (4) comments regarding the test 
schedule that were successfully received by the Docket Management 
Facility. Three of the comments were from charter fishermen operating 
out of Duluth Harbor. The fourth comment was from a representative of 
Duluth Seaway Port Authority. The comments from charter fishermen 
generally cited objections to the scheduled bridge openings for their 
type of vessels. Among the comments were statements regarding 
inconsistencies by bridge operators for openings, concerns for vessel 
safety due to smaller power vessels operating in the canal at high 
speeds among vessels waiting for bridge openings, and dates and times 
of the day that the scheduled openings should apply; specifically, that 
the scheduled openings should not be in place before 7:30 a.m. each 
day. The Port Authority commenter stated that the scheduled openings 
should not apply to commercial vessels of any size

[[Page 76326]]

that support the commercial cargo business in the port, as well as 
research and survey vessels. The Port Authority comment also included a 
recommendation to adjust the dates and times that scheduled drawbridge 
openings would apply.
    In addition to the written comments, a stakeholders meeting was 
held in Duluth on October 20, 2010, to review and evaluate the test 
drawbridge schedule and receive comments. The stakeholders meeting 
included representatives from Coast Guard, City of Duluth, Duluth 
Seaway Port Authority, Park Point Community Association, Canal Park 
Business Association, Great Lakes Towing Company, Vista Cruise Lines, 
Duluth Yacht Club, and Charter Fishermen.

Discussion of Proposed Rule

    The City of Duluth collected data throughout the test period 
related to vehicular and vessel traffic counts, and the number of 
bridge openings. In addition to the data collected, each stakeholder 
had the opportunity to amplify their written comments and provide 
additional direct input to the Coast Guard during the October 20, 2010, 
meeting. During the stakeholder meeting it was generally agreed by all 
parties that the scheduled bridge openings appeared to improve the 
general flow of vehicular traffic on both sides of the bridge and 
reduced vehicular traffic congestion. The claim of inconsistencies by 
the bridge operators was discussed, and appeared to be isolated to only 
a few incidents. They also occurred near the beginning of the test 
period and can reasonably be attributed to all parties adjusting to the 
scheduled bridge openings. The Port Authority and Great Lakes Towing 
Company representatives stated their positions that towing vessels 
engaged in port operations should be specifically included with vessels 
that continue to have bridge openings at any time (on signal). The 
proposed rule has been adjusted to include these types of vessels for 
openings on signal. Research and survey vessels operating from Duluth 
Harbor were also requested to be specifically included in this group. 
This class of vessels is considered public or government vessels and 
may request bridge openings on signal. Only a minor adjustment to the 
proposed language is needed to address this statement. The comment 
regarding vessels operating at unsafe speeds in the canal is considered 
a law enforcement issue and not related to the scheduled drawbridge 
openings. The Coast Guard will take these reports into consideration. 
Regarding the time of year and hours each day that the scheduled 
openings would apply, it was generally agreed during the stakeholders 
meeting that the scheduled openings would be beneficial and effective 
between Memorial Day and Labor Day each year, instead of the beginning 
of May to the end of October, as it was implemented for the test 
schedule. The scheduled opening hours during the test schedule were 
from 6 a.m. to 9 p.m. each day. It was requested that the scheduled 
openings start at 7:30 a.m. instead of 6 a.m. The later start time was 
requested to allow for the charter fishermen to obtain bridge openings 
for their first trip of the day during a time when vehicular traffic is 
still relatively light. The data collected by the City of Duluth 
supports the agreed change to the dates that the scheduled openings 
would apply. The data also identifies that the requested time each day 
to start scheduled openings should be 7 a.m. instead of 6 a.m. or 7:30 
a.m. In addition to the vehicular traffic data below that indicates a 
clear increase in rush hour traffic between 7 and 8 a.m., bridge 
opening logs showed that the first trip each day for most charter 
fishermen occurred before 7 a.m. In order to maintain an effective 
bridge schedule that accomplishes the purpose of managing traffic 
congestion while still providing for the reasonable needs of 
navigation, the proposed rule adjusts the times for scheduled openings 
from 7 a.m. to 9 p.m. The later time was also discussed and determined 
to remain at 9 p.m. since there is still considerable vehicular traffic 
departing the public park area on Minnesota Point around this hour 
between Memorial Day and Labor Day. Additionally, the 9 p.m. time does 
not adversely affect any vessel traffic. The data below collected by 
City of Duluth illustrates support for the agreed adjustments during 
the stakeholders meeting:

                                       Total Vessels Under 300 Gross Tons
----------------------------------------------------------------------------------------------------------------
                                        May          June         July         Aug          Sep          Oct
----------------------------------------------------------------------------------------------------------------
2009..............................          383         1287         2015         1974         1331          212
2010..............................          528         1066         2088         1430         1016          380
----------------------------------------------------------------------------------------------------------------
                                              Total Bridge Openings
----------------------------------------------------------------------------------------------------------------
2009..............................          320          841         1097         1184          800          350
2010..............................          300          576          860          630          752          429
----------------------------------------------------------------------------------------------------------------


                                        Total Vehicles (Both Directions)
                                  [Vehicular counts were not collected in 2009]
----------------------------------------------------------------------------------------------------------------
                                        May          June         July         Aug          Sep          Oct
----------------------------------------------------------------------------------------------------------------
2010..............................      102,564      210,539      266,000      230,668      160,591      163,110
----------------------------------------------------------------------------------------------------------------


                  Total Average Vehicles for Each Hour
------------------------------------------------------------------------
                                           6 a.m.-7 a.m.   7 a.m.-8 a.m.
------------------------------------------------------------------------
June....................................           68.20           97.53
July....................................           58.77           87.80
August..................................           50.04           84.09
------------------------------------------------------------------------

    In addition to the two scheduled openings per hour, vessels will 
continue to have access to the harbor through the alternate Superior, 
Wisconsin, Entry Channel, and passage of the Aerial Bridge during 
unscheduled openings for commercial vessels. The proposed schedule is 
expected to provide for the reasonable balance of all modes of 
transportation and effectively accomplish the requested goal of 
improving traffic congestion and safety in the area of the Duluth 
Aerial Bridge.
    This proposed regulation also adjusts the current required advance 
notice requirement for vessels from 24-hours to 12-hours vessels 
between January 1 and March 15.

[[Page 76327]]

Regulatory Analyses

    We developed this proposed 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 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. This determination is 
expected to improve traffic congestion and safety in the vicinity of 
the drawbridge and does not exclude bridge openings for vessel traffic.

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. The proposed rule continues to provide at 
least two drawbridge openings per hour between 7 a.m. and 9 p.m. each 
day, and openings at any time during all other hours, as well as during 
unscheduled transits of commercial vessels. The test schedule 
implemented this year resulted in only minor adjustments in schedules 
or operations for all entities. Additionally, all vessels that do not 
require bridge openings may transit the drawbridge at any time, and the 
alternate Superior, Wisconsin, Entry Channel may be used by all vessels 
at any time.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this 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 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 Mr. Lee D. Soule, Bridge 
Management Specialist, U.S. Coast Guard, telephone 216-902-6085, e-mail 
[email protected], or fax 216-902-6088. The Coast Guard will not 
retaliate against small entities that question or complain about this 
proposed rule or any policy or action of the Coast Guard.

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 (adjusted for 
inflation) or more in any one year. Though this proposed 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 proposed rule would not cause 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 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. 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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

[[Page 76328]]

Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01, 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 made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment because it simply 
promulgates the operating regulations or procedures for drawbridges. We 
seek any comments or information that may lead to the discovery of a 
significant environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 117

    Bridges.

    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; 33 CFR 1.05-1; Department of Homeland 
Security Delegation No. 0170.1.

    2. Revise Sec.  117.661 to read as follow:


Sec.  117.661  Duluth Ship Canal (Duluth-Superior Harbor).

    The draw of the Duluth Ship Canal Aerial bridge, mile 0.25 at 
Duluth, shall open on signal; except that, from the Friday before 
Memorial Day through the Tuesday after Labor Day each year, between the 
hours of 7 a.m. and 9 p.m., seven days a week, the drawbridge shall 
open on the hour and half-hour for vessels under 300 gross tons, if 
needed; and the bridge will open on signal for all vessels from 9 p.m. 
to 7 a.m., seven days a week, and at all times for Federal, State, and 
local government vessels, vessels in distress, commercial vessels 
engaged in rescue or emergency salvage operations, commercial-assist 
towing vessels engaged in towing or port operations, vessels engaged in 
pilot duties, vessels seeking shelter from severe weather, and all 
vessels 300 gross tons or greater. From January 1 through March 15, the 
draw shall open on signal if at least 12 hours notice is given. The 
opening signal is one prolonged blast, one short blast, one prolonged 
blast, one short blast. If the drawbridge is disabled, the bridge 
authorities shall give incoming and outgoing vessels timely and 
dependable notice, by tug service if necessary, so that the vessels do 
not attempt to enter the canal.

    Dated: November 23, 2010.
M.N. Parks,
Rear Admiral, U.S. Coast Guard Commander, Ninth Coast Guard District.
[FR Doc. 2010-30739 Filed 12-7-10; 8:45 am]
BILLING CODE 9110-04-P