[Federal Register Volume 76, Number 41 (Wednesday, March 2, 2011)]
[Rules and Regulations]
[Pages 11332-11334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4591]


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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: Final rule.

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SUMMARY: The Coast Guard is establishing a drawbridge opening schedule 
for the Duluth Aerial Lift Bridge for vessels under 300 gross tons. 
Scheduled drawbridge openings will improve traffic congestion in the 
area and enhance safety for all modes of transportation.

DATES: This rule is effective April 1, 2011.

ADDRESSES: Comments and related materials received from the public, as 
well as documents mentioned in this preamble as being available in the 
docket, are part of docket USCG-2010-1030 and are available online by 
going to http://www.regulations.gov, inserting USCG-2010-1030 in the 
``Keyword'' box, and then clicking ``Search.'' This material is also 
available for inspection or copying at 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 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 material in the docket, call Renee V. 
Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    Commander, Ninth Coast Guard District, published a temporary 
deviation from these regulations, with request for comments, on April 
22, 2010, in the Federal Register (75 FR 20918). The temporary 
deviation was used to test a new bridge schedule during the 2010 
navigation and tourist season. On December 8, 2010, we published a 
notice of proposed rulemaking (NPRM) entitled Drawbridge Operation 
Regulation; Duluth Ship Canal, Duluth-Superior Harbor, MN. in the 
Federal Register (75 FR 76324). We received two comments in response to 
the proposed rule. No public meeting was requested, and none was held.

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 both large 
and smaller commercial vessels, as well as both power and sail 
recreational vessels. Pursuant to 33 CFR 117.8 various entities in 
Duluth requested scheduled openings instead of opening on signal. The 
requesting entities included the City of Duluth, the Duluth Fire 
Department-Emergency Management, the Duluth Police Department, the Park 
Point Community Association, and the 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. 
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 on 
signal 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. 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. 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 between the hours of 7 a.m. and 9 p.m. The data 
below collected by the City of Duluth illustrates support for the times 
and dates:

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                               May                  June                  July                   Aug                   Sep                   Oct
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                                                           TOTAL VESSELS UNDER 300 GROSS TONS
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             2009                   383                  1287                  2015                  1974                  1331                   212
             2010                   528                  1066                  2088                  1430                  1016                   380
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                                                                  TOTAL BRIDGE OPENINGS
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             2009                   320                   841                  1097                  1184                   800                   350
             2010                   300                   576                   860                   630                   752                   429
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[[Page 11333]]

 
                                                            TOTAL VEHICLES (BOTH DIRECTIONS)
                                                      (Vehicular counts were not collected in 2009)
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             2010               102,564               210,539               266,000               230,668               160,591               163,110
--------------------------------------------------------------------------------------------------------------------------------------------------------


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                                                                    6 a.m.-7 a.m.             7 a.m.-8 a.m.
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                                      TOTAL AVERAGE VEHICLES FOR EACH HOUR
June........................................................                    68.20                     97.53
July........................................................                    58.77                     87.80
August......................................................                    50.04                     84.09
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    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, as well as passage thru the Aerial Bridge 
during unscheduled openings for commercial vessels. This rule will 
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 
final rule also adjusts the current required advance notice requirement 
for vessels from 24-hours to 12-hours vessels between January 1 and 
March 15.

Discussion of Comments and Changes

    The Coast Guard received two comments regarding the NPRM, one that 
was successfully received by the Docket Management Facility, and the 
second by direct email. Both comments were from private citizens. The 
first comment cited that members of the Park Point Community 
Association were invited to the stakeholder meeting on October 20, 2010 
described in the NPRM, however no representative from Park Point 
Community Association attended, that there was no provision in the 
proposed rule providing priority for emergency vehicles to cross the 
bridge, and that the proposed schedule should be extended to twelve 
months instead of providing only for the peak tourist season.
    The October 20, 2010 stakeholders meeting was attended by a Duluth 
City Councilwoman, who stated at the meeting she was representing Park 
Point residents. Additionally, all Park Point residents had the 
opportunity to provide comments during the test deviation as well as 
during the comment period for the NPRM. Regarding priority for 
emergency vehicles, 33 CFR 117.31(a) states that upon receiving 
notification that an emergency vehicle is responding to an emergency 
situation, a drawtender must make all reasonable efforts to have the 
drawspan closed at the time the emergency vehicle arrives.
    As described in the Basis and Purpose section above, all data, and 
all other comments, indicate that the dates and times in this final 
rule are the appropriate dates and times for scheduled drawbridge 
openings, and not throughout the whole year.
    The second comment, received by direct email, was from a local 
recreational vessel operator. The comment stated no general objection 
to the schedule, but he also stated the schedule did not appear to 
improve general vehicular and pedestrian traffic congestion. All other 
accounts of the scheduled openings indicate that the schedule has 
helped reduce traffic congestion and improved safety for all modes of 
transportation.
    The Coast Guard decided not to make any changes to the proposed 
rule.

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. The rule will establish permanent 
scheduled openings and revise the advance notice time during winter 
seasons from twenty-four hours to twelve hours. The scheduled bridge 
openings are expected to improve vehicular traffic congestion and 
safety near the bridge while still providing for reasonable openings 
for vessel traffic.

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 
would not have a significant economic impact on a substantial number of 
small entities. This rule continues to provide at least two drawbridge 
openings per hour between 7:00 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process.

Collection of Information

    This 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

[[Page 11334]]

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 (adjusted for 
inflation) 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 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 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 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 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.

    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. 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 
commercial 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: February 7, 2011.
M.N. Parks,
Rear Admiral, U. S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2011-4591 Filed 3-1-11; 8:45 am]
BILLING CODE 9110-04-P