[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Proposed Rules]
[Pages 76322-76324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30740]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2010-1029]
RIN 1625-AA09


Drawbridge Operation Regulation; Fox River, Oshkosh, WI

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to establish remote drawbridge 
operating procedures for the Canadian National Railway Bridge across 
the Fox River at Mile 55.72 at Oshkosh, Wisconsin. This proposed rule 
is intended to establish standard bridge operating conditions for both 
vessel and train traffic while allowing the bridge to be remotely 
operated.

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-
2010-1029 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 ``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 D. Soule, Bridge Management Specialist, 
U.S. Coast Guard; telephone 216-902-6085, e-mail [email protected], 
or fax 216-902-6088. 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-2010-1029), 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-2010-1029'' 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[frac12] 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-2010-1029'' 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

[[Page 76323]]

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 drawbridge owner, Canadian National Railway (CN RR), requested 
that the District Commander approve remote operation of the drawbridge 
in accordance with 33 CFR 117.42. The drawbridge has been remotely 
operated without specific authorization from the District Commander for 
approximately 3-4 years, and is currently required to open on signal 
year round. Vessel operators have recently informed the Coast Guard 
that the drawbridge formerly was left in the open-to-navigation 
position and only closed when a train was crossing, but this practice 
was no longer used and vessels have been experiencing unreasonable 
delays. The Coast Guard has determined that the bridge could continue 
to be remotely operated as long as it also provided for the reasonable 
needs of navigation. This rule is also necessary to comply with 33 CFR 
117.42 by providing a description of the full operation of the remotely 
operated drawbridge. This bridge is a swing type railroad bridge that 
provides a horizontal clearance of 70 feet in each draw span. The 
vertical clearance is 6 feet in the closed position.

Discussion of Proposed Rule

    Between April 15 and October 15 each year, the proposed regulation 
would require the bridge to remain in the open-to-navigation position 
unless train traffic is crossing, then reopen once train traffic has 
passed. The bridge would also be required to maintain and operate a 
marine radiotelephone, along with equipment to visually monitor the 
waterway and communicate with vessels using all signaling methods 
described in 33 CFR 117.15. The proposed light and sound signals would 
provide vessels with a method of warning when the bridge is expected to 
either close for train traffic or reopen for vessel traffic without 
having to establish direct communication with the remote bridge 
operator. The proposed regulation also establishes a permanent winter 
operating schedule by requiring vessels to provide at least 12-hours 
advance notice for a bridge opening during winter, or during the 
traditional non-boating season, between October 16 and April 14 each 
year.

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 intermodal transportation at the bridge crossing 
and does not exclude either vessel or train 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 regulation is expected to 
increase availability of the drawbridge for vessel traffic and 
potentially increase access by, and to, small entities on the waterway.
    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

[[Page 76324]]

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.

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. In Sec.  117.1087 add paragraph (e) to read as follows:


Sec.  117.1087  Fox River.

* * * * *
    (e) The draw of the Canadian National Bridge, mile 55.72, at 
Oshkosh, shall operate as follows:
    (1) From April 15 to October 15 the draw will be remotely operated 
and shall remain in the open position for vessel traffic unless the 
following train sequence occurs; when a train is scheduled to cross the 
bridge, a flashing red light will be displayed when the bridge will 
close in 10 minutes, then a fixed red light when the bridge will close 
in 5 minutes, then a flashing red light and continuous ringing bell 
when the bridge will close in 1 minute, and during the closing 
sequence. After train traffic has crossed, and when the bridge again 
opens for vessel traffic, a flashing red light and continuous ringing 
bell will be displayed when the bridge will open in 1 minute, and 
during the opening sequence.
    (2) From October 16 to April 14 the draw shall open on signal if at 
least a 12 hour advance notice is provided.
    (3) Before the bridge opens or closes, and while the draw is in 
motion, the remote operator shall monitor waterway traffic by remote 
visual inspection to show the waterway is clear and it is safe to 
operate the draw. The remote operator shall also announce that the 
bridge is opening or closing on VHF-FM Marine Radiotelephone. The 
owners of the bridge shall maintain 2 board gauges in accordance with 
33 CFR 118.160 of this chapter. The remote drawtender may be contacted 
by mariners at anytime by radiotelephone or commercial phone number; 
this information shall be so posted on the bridge so that they are 
plainly visible to vessel operators approaching the up or downstream 
side of the bridge.

    Dated: November 23, 2010.
M.N. Parks,
Rear Admiral, U.S. Coast Guard Commander, Ninth Coast Guard District.
[FR Doc. 2010-30740 Filed 12-7-10; 8:45 am]
BILLING CODE 9110-04-P