
[Federal Register: June 25, 2009 (Volume 74, Number 121)]
[Rules and Regulations]               
[Page 30225-30227]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn09-8]                         


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2008-1141, formerly CGD11-03-005]
RIN 1625-AA09

 
Drawbridge Operation Regulations; Connection Slough, Bacon 
Island, CA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is changing the drawbridge operation 
regulation governing the operation of the Connection Slough Drawbridge. 
This final rule ensures a drawbridge operator can be contacted, is 
present at the drawbridge during identified increased navigation 
periods, and reduces the hours a drawbridge operator is required to be 
at the drawbridge and not gainfully employed. These changes will 
continue to provide for the reasonable needs of navigation.

DATES: This rule is effective July 27, 2009.

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- USCG-2008-1141 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-
2008-1141 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 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. David H. Sulouff, Bridge Administrator, Eleventh 
Coast Guard District; telephone (510) 437-3516, e-mail 
David.H.Sulouff@uscg.mil. If you have questions on viewing the 
electronic docket, call Ms. Renee V. Wright, Program Manager, Docket 
Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On September 22, 2003, the Coast Guard published a Notice of 
Proposed Rulemaking (NPRM) entitled Drawbridge Operation Regulations; 
Connection Slough, Stockton, CA (68 FR 55020), to adjust the advance 
notice procedures for mariners to contact the drawbridge for an 
opening. Based on the 220 comments received, the Coast Guard reopened 
the comment period on June 18, 2004, with a Supplemental Notice of 
Proposed Rulemaking (SNPRM) (69 FR 34100), under the same title, to 
explain and reemphasize the continued availability for the drawbridge 
to open, with seasonal adjustments to the ``advance notice'' times for 
mariners to schedule openings of the bridge. Two non-substantive 
comments were received from the SNPRM; however, due to variances 
between the bridge owner and the public, the Coast Guard chose to not 
move forward with the proposed rule but left the docket open.
    At the request of the bridge owner to reassess the proposed rule, 
the Coast Guard published another SNPRM on December 1, 2008, (73 FR 
72752) using the electronic docket tracking system as USCG-2008-1141. 
The comment period concluded on March 2, 2009 with no comments.

Background and Purpose

    The drawbridge owner, Central California Redevelopment Company 
(CCRC Farms), requested changing the dates and times for advance notice 
for drawspan operation at their Reclamation District drawbridge, 
crossing Connection Slough between Mandeville and Bacon Islands, near 
Stockton, CA. The reason for the proposal was to reduce operating costs 
of the drawbridge while continuing to meet the reasonable needs of 
vessel traffic. CCRC Farms provided drawbridge operating logs for a 
two-year period (2000 to 2002) that documented a significant decrease 
in calls for operation of the drawspan from September 16 to May 14, 
annually, between the hours of 5 p.m. and 9 a.m. This supported their 
request to adjust the existing advance notice period to more closely 
match the reduced navigational activity. On September 22, 2003, we 
published an NPRM and the information was also published in the Coast 
Guard Local Notice to Mariners (LNM), 40/3, dated October 7, 2003. The 
Coast Guard received approximately 220 letters and observed at least 
two articles in a local publication that objected to a reduced 
availability of the drawbridge to open for vessels. The wording in the 
NPRM and the LNM did not clearly explain that the drawspan will 
continue to be available for passage of vessels on a 24 hour, seven day 
per week basis. We addressed those comments in the June 18, 2004 SNPRM 
and provided written copies of the SNPRM to the local media and to 
those who commented previously, to ensure any replies to our office are 
based upon the official proposal. The Coast Guard received two non-
substantive comments regarding the SNPRM. However there remained 
conflicting information between the bridge owner and the waterways 
users. At that time the Coast Guard chose not to pursue the proposed 
schedule until the differing issues could be resolved and chose to 
leave the docket open. On July 24, 2008, Tuscany Research Institute and 
CCRC Farms provided additional supporting documentation in favor of 
revised advance notice drawbridge operation regulation for the bridge 
and reinitiated the request for the Coast Guard to evaluate the 
proposal. On December 1, 2008, the Coast Guard published an SNPRM in 
the Federal Register, proposing adjusted advance notice times for this 
drawbridge. The Coast Guard also published the information in the Local 
Notice to Mariners for 21 weeks, beginning October 8, 2008 and ending 
February 25, 2009.
    The existing regulation, 33 CFR 117.150, requires the drawbridge, 
from May 1 through October 31, to open on signal between the hours of 6 
a.m. and 10 p.m., and from November 1 through April 30, to open on 
signal between the hours of 9 a.m. and 5 p.m. All other times the 
drawbridge must open on signal if notice is given at least four hours 
in advance. All drawbridges are required to open for emergencies as 
required by 33 CFR 117.31. It is also important to note that the 
existing regulation presently allows the drawbridge owner to operate 
the drawbridge with advance notice, during certain dates and times. It 
does not allow the drawbridge to remain closed or to obstruct 
navigation, when the proper signals to open have been given. Many 
comments, received in response to the NPRM, indicated a lack of 
understanding of the existing advance notice operation. Therefore, the 
Coast Guard will ensure signs are installed, maintained and updated by 
the bridge owner, on the upstream and downstream sides of the 
drawbridge, in compliance with 33 CFR 117.55, to post the advance 
notice schedules, with telephone numbers and point of contact to be 
notified for drawbridge operation. Vessel operators are reminded to 
adhere to requirements in 33 CFR 117.11 regarding unnecessary opening 
of the draw. The Coast Guard periodically reminds bridge owners of 
their

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responsibility to provide drawbridge openings for vessels when signals 
have been given, and failure to comply may result in significant civil 
penalties against the bridge owner. Waterway users are encouraged to 
promptly notify the Eleventh Coast Guard District Bridge Office at 
(510) 437-3516, if vessel delays are caused by improper operation of 
the drawbridge.

Discussion of Comments and Changes

    This rule amends 33 CFR 117.150 by revising the current operating 
schedule for the Reclamation District No. 2027 bridge across Connection 
Slough. This rule extends both the annual date and daily time when the 
bridge is allowed to operate under advanced notice.
    Comments received from the NPRM are discussed more fully above and 
were addressed in the SNPRM dated June 18, 2004. The June 18, 2004 
SNPRM received two comments and neither was substantive in regard to 
the proposed rule and the 2008 SNPRM received no comments. No public 
meeting was requested and none was held.

Regulatory Analysis

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analysis 
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.
    This conclusion is based on the fact that these changes have only a 
minimal impact on maritime traffic transiting the bridge. Mariners can 
schedule bridge openings any time, night or day, any day of the year. 
Mariners may also plan their trips to arrive at the drawbridge during 
times when a bridge operator is scheduled to be present at the bridge. 
Vessels that can pass under the bridge without a bridge opening may do 
so at all times.

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 conclusion is based on the fact that the changes will have 
only a minimal impact on maritime traffic transiting the bridge. 
Mariners can schedule bridge openings any time, night or day, any day 
of the year. Mariners may also plan their trips to arrive at the 
drawbridge during times when a bridge operator is scheduled to be 
present at the bridge. Vessels that can pass under the bridge without a 
bridge opening may do so at all times.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the SNPRM 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.
    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). 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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would 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 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 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

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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 
guide 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 does not 
individually or cumulatively have a significant effect on the human 
environment. Therefore this rule is categorically excluded, under 
section 2.B.2. figure 2-1, paragraph (32)(e), of the Instruction.
    Under figure 2-1, paragraph (32)(e), of the Instruction, neither an 
environmental analysis checklist nor 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. Revise 33 CFR 117.150 to read as follows:


Sec.  117.150   Connection Slough.

    The draw of the Reclamation District No. 2027 bridge between 
Mandeville and Bacon Islands, mile 2.5 near Stockton, from May 15 
through September 15, shall open on signal between the hours of 9 a.m. 
and 5 p.m., and it shall open upon 12 hours advance notice between the 
hours of 5 p.m. and 9 a.m.; and from September 16 through May 14 the 
draw shall open upon 12 hours advance notice between the hours of 9 
a.m. and 5 p.m., and it shall open upon 24 hours advance notice between 
the hours of 5 p.m. and 9 a.m. Advance notice shall be given to the 
drawbridge operator by telephone at (209) 464-2959 or (209) 464-7928 
weekdays between 8 a.m. and 5 p.m., and at (209) 993-8878 all other 
times.

    Dated: June 8, 2009.
P.F. Zukunft,
Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard 
District.
[FR Doc. E9-14946 Filed 6-24-09; 8:45 am]

BILLING CODE 4910-15-P
