FR Doc 06-9237

[Federal Register: November 16, 2006 (Volume 71, Number 221)]
[Rules and Regulations]
[Page 66669-66673]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16no06-9]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-06-002]
RIN 1625-AA09

Drawbridge Operation Regulations; Chincoteague Channel,
Chincoteague, VA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is changing the drawbridge operation
regulations that govern the SR 175 Bridge, at mile 3.5, across
Chincoteague Channel at Chincoteague Island, Virginia. This change is
necessary to help relieve vehicular traffic congestion and reduce
traffic delays while still balancing the needs of marine and vehicular
traffic.

DATES: This rule is effective December 18, 2006.

ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket CGD05-06-002 and will be

[[Page 66670]]

available for inspection or copying at Commander (dpb), Fifth Coast
Guard District between 8 a.m. and 4 p.m., Monday through Friday, except
Federal holidays. The Fifth Coast Guard District maintains the public
docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Gary S. Heyer, Bridge Management
Specialist, Fifth Coast Guard District, at (757) 398-6629.

SUPPLEMENTARY INFORMATION:

Regulatory History

On June 28, 2004, we published a notice of temporary deviation from
the regulations and request for comments entitled ``Drawbridge
Operation Regulations; Chincoteague Channel, VA'' in the Federal
Register (69 FR 36011). The temporary deviation was in operation to
test an alternate drawbridge operation schedule for 90 days and solicit
comments from the public. From July 2, 2004 through September 29, 2004,
the draw of the bridge opened every two hours on the even hour from 6
a.m. to midnight; except from 7 a.m. to 5 p.m., on the last consecutive
Wednesday and Thursday in July, the draw needed not be opened. At all
other times, the draw needed not open. The Coast Guard received six
letters and four petitions commenting on the provisions of the
temporary deviation.
On December 30, 2004, the Coast Guard published a notice of
proposed rulemaking (NPRM) entitled ``Drawbridge Operation Regulation;
Chincoteague Channel, Chincoteague, VA'' in the Federal Register (69 FR
78373). The NPRM allowed hourly openings of the draw year-round from 6
a.m. to midnight; except from 7 a.m. to 5 p.m. on the last consecutive
Wednesday and Thursday in July of every year, the draw needed not be
opened. At all other times, the draw needed not open. We received six
comments on the NPRM.
On April 18, 2005, the Coast Guard published a final rule entitled
``Drawbridge Operation Regulation; Chincoteague Channel, Chincoteague,
VA'' in the Federal Register (70 FR 20051). The final rule required the
draw to open on demand from midnight to 6 a.m., and on the hour from 6
a.m. to midnight, except from 7 a.m. to 5 p.m. on the last consecutive
Wednesday and Thursday in July of every year, the draw needed not be
opened.
We published an NPRM on April 13, 2006, entitled ``Drawbridge
Operation Regulations; Chincoteague Channel, Chincoteague, VA'' in the
Federal Register (71 FR 19150). The NPRM would allow the bridge to open
on demand from midnight to 6 a.m., and every hour and a half from 6
a.m. to midnight; except from 7 a.m. to 5 p.m., on the last consecutive
Wednesday and Thursday in July, the draw need not be opened. The
comment period ended on May 30, 2006. We received 557 comments to the
NPRM.
On June 26, 2006, we published a notice; request for comments and
notice of public meeting in the Federal Register (71 FR 36297). On July
18, 2006, we held a public meeting at the Chincoteague Community
Center, Chincoteague Island, Virginia. We accepted written comments
from the public until July 21, 2006.

Background and Purpose

Current regulations require the SR 175 Bridge, at mile 3.5, across
Chincoteague Channel to open on demand from midnight to 6 a.m. and on
the hour from 6 a.m. to midnight, except the draw shall remain in the
closed position to vessels from 7 a.m. to 5 p.m. on the last
consecutive Wednesday and Thursday in July of every year.
In October 2005, the Chincoteague Town Council adopted a resolution
that requested a change in the scheduled openings of the bridge. The
resolution details the Town's concerns based on the following factors:
The number of openings have actually increased since the last
modification; the boats north of the bridge frequently sail and return
one-at-a-time; due to inconsistencies in the openings, the Town of
Chincoteague has received many complaints from motorists; and openings
on the even hours as needed will not significantly impact the boaters.
Additionally, in September 2005, we were advised of an incident in
which ambulance services were unable to transit the drawbridge due to a
vessel opening request. The ambulance service was further delayed
because during closing procedures the drawbridge experienced mechanical
problems. The Coast Guard drawbridge operating regulations already
address the emergency situations, so no changes are needed to the
operating regulations to address that concern. 33 CFR Part 117.31(a)--
Operation of draw for emergency situations--states that ``When a draw
tender is informed by a reliable source that an emergency vehicle is
due to cross the draw, the draw tender shall take all reasonable
measures to have the draw closed at the time the emergency vehicle
arrives at the bridge''.
Based on the request from the Chincoteague Town Council, we
published a NPRM on April 13, 2006, entitled ``Drawbridge Operation
Regulations; Chincoteague Channel, Chincoteague, VA'' in the Federal
Register (71 FR 19150). The NPRM would allow the bridge to open on
demand from midnight to 6 a.m., and every one and a half hours from 6
a.m. to midnight; except from 7 a.m. to 5 p.m., on the last consecutive
Wednesday and Thursday in July, the draw need not be opened. The
proposed change would reduce vehicular traffic congestion while still
balancing the needs of marine and vehicular traffic. The comment period
ended on May 30, 2006.
After the comment period ended on May 30, 2006, an Accomack County
official communicated to the Coast Guard that residents of Chincoteague
had additional comments concerning the operating regulations of the
drawbridge. Based on this request we held a public meeting at the
Chincoteague Community Center, at Chincoteague Island, Virginia. We
accepted written comments from the public until July 21, 2006.
The Coast Guard also reviewed the bridge logs provided by VDOT.
There were approximately 1919 bridge openings in 2005 over a six-month
period (May, June, July, August, September and October) (See Table A);
and in 2006, for the same six-month period, there were approximately
1359 bridge openings. (See Table B).

Table A
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Bridge Openings for 2005
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JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC
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62 112 60 163 453 330 316 317 291 212 200 134
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[[Page 66671]]

Boat Passages for 2005
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56 122 61 187 642 606 559 622 377 368 268 160
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Table B
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Bridge Openings for 2006
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JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC
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134 141 82 181 359 271 265 236 122 106 NA NA
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Boat Passages for 2006
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167 177 88 279 710 460 431 361 145 125 NA NA
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Annually, there are between 66 and 90 commercial fishing vessels
that are dependent on regular drawbridge openings to access docking
facilities to unload their product. Depending on the season, these
vessels regularly unload multiple seafood catches a day because of trip
catch limits. The Virginia Natural Resources Department provided
Fisheries landing data from 2002 to 2005 for Accomack County. This data
supports an overall increase in the pounds of seafood unloaded and the
monetary value which supports the economic base for the surrounding
area. (See Table C)

Table C.--Summary of Fisheries Data--Accomack County
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2002.................................... \1\ 11,238,247 $9,811,727
2003.................................... \1\ 11,304,169 10,900,731
2004.................................... \1\ 12,829,955 13,745,649
2005.................................... \1\ 10,693,540 12,369,899
------------------------------------------------------------------------
\1\ Pounds.

During the late spring, summer and early fall months, the number of
vacationers and commercial fishing vessels (often scallop boats) that
utilize the SR 175 Bridge is ever-increasing. The average resident
population in the Town of Chincoteague is approximately 5,000. However,
in the summertime with vacationers, the average population on
Chincoteague Island is about 15,000. A proposed seasonal schedule was
considered as an option, where the drawbridge would open for vessels
every two hours during the spring and summer months; and hourly during
the fall and winter months. However, the data shows that the peak
commercial fishing period and delivery times are in direct conflict
with the peak tourist and travel season on Chincoteague Island.
Therefore, this option was not chosen.

Discussion of Comments and Changes

The Coast Guard received 554 comments to the NPRM published on
April 13, 2006 (71 FR 19150). The comments included 540 letters, one
petition, two e-mail comments, and 14 oral remarks presented at the
public meeting.
The vast majority of the letters (471) were mass-produced form
letters signed by residents. In addition, there were 60 letters from
fishermen and small businesses. Six letters were from State and Town
officials (two letters each from an Accomack County Supervisor, and the
Town Manager of Chincoteague; with one letter each from a Virginia
House Delegate, and an official with the Virginia Department of
Transportation (VDOT)). Two separate comments were supplied on one e-
mail message.
A majority of comments from residents of the Town of Chincoteague
favored a two-hour opening schedule of the drawbridge from 6 a.m. to
midnight. Commercial vessel owners and small businesses preferred
hourly openings. However, the commercial vessel owners and small
businesses commented that they can manage their establishments and
vessels under the proposal to open every one and a half hour from 6
a.m. to midnight. Eight of the 14 oral remarks that were offered at the
public meeting favored a two-hour opening schedule of the drawbridge
from 6 a.m. to midnight, and 6 supported openings every one and a half
hour from 6 a.m. to midnight.
The State and Town officials asserted their concerns that the
bridge has exceeded its useful design life, that the increase in vessel
traffic to the area has had a serious impact on the wear and tear of
the bridge, and that reducing the number of vessel openings will assist
VDOT in maintaining the mechanical condition of the bridge until a
replacement bridge is complete.
It is the duty of the owner and operator of a drawbridge, VDOT in
this case, to maintain the operating machinery in a serviceable
condition and to provide for the safe and prompt opening of the
drawbridge according to the operating regulations. The Coast Guard may
not issue regulations for the purpose of relieving the owner or
operator of the duty to properly maintain or operate the draw span
solely because of financial hardship, or to save wear and tear on the
structure or machinery, unless there is clearly documented evidence
that there is little or no need for bridge openings. The data shows
that mariners still require continued openings of the SR 175 Bridge
over Chincoteague Channel, so the wear and tear on the bridge will not
be considered as a factor in establishing the operating regulations.
Based on all of the comments received, we will implement a final
rule with no changes to the NPRM. Under this final rule, the draw will
open on demand from midnight to 6 a.m., and every one and a half hours
from 6 a.m. to midnight (at 6 a.m., 7:30 a.m., 9 a.m., 10:30 a.m., 12
p.m., 1:30 p.m., 3 p.m., 4:30 p.m., 6 p.m., 7:30 p.m., 9 p.m. 10:30
p.m. and midnight); except from 7 a.m. to 5 p.m. on the last
consecutive Wednesday and Thursday in July, the draw need not open.
To minimize uncertainty and to assist in the transition to the new
operating schedule of the drawbridge, the Coast Guard will print and
distribute flyers providing the new opening times to residents and
business owners. Officials with VDOT are required to post signs on the
bridge for mariners with the operating schedule, including the opening
times from 6 a.m. to midnight.

[[Page 66672]]

This final rule will help address vehicular traffic congestion and
reduce traffic delays while still providing for the reasonable needs of
navigation.

Discussion of Rule

The Coast Guard amends 33 CFR 117.1005, by inserting a new
provision to require the draw to open on demand from midnight to 6
a.m., and every one and a half hour from 6 a.m. to midnight (at 6 a.m.,
7:30 a.m., 9 a.m., 10:30 a.m., 12 p.m., 1:30 p.m., 3 p.m., 4:30 p.m., 6
p.m., 7:30 p.m., 9 p.m. 10:30 p.m. and midnight); except from 7 a.m. to
5 p.m. on the last consecutive Wednesday and Thursday in July, the draw
need not open.

Regulatory Evaluation

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. It is not ``significant'' under the
regulatory policies and procedures of the Department of Homeland
Security (DHS).
This conclusion based on the fact that the changes will have only a
minimal impact on maritime traffic transiting the bridge. Mariners can
plan their trips in accordance with the scheduled bridge openings to
minimize delays.

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 the rule would not have a
significant economic impact on a substantial number of small entities
because the rule only adds minimal restrictions to the movement of
navigation, and mariners who plan their transits in accordance with the
scheduled bridge openings can minimize delays. In addition, the
comments received from mariners suggest that they can accommodate the
change in the schedule.

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 rule so that they can better evaluate
its effects on them and participate in the rulemaking process. No
assistance was requested from any small entity.

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 would not affect 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 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 Commandant Instruction M16475.lD
and Department of Homeland Security Management Directive 5100.1, 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 there are no factors in this case that would limit the use of a
categorical exclusion under section 2.B.2 of the Instruction.
Therefore, this rule is categorically

[[Page 66673]]

excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from
further environmental documentation because it has been determined that
the promulgation of operating regulations for drawbridges are
categorically excluded.

List of Subjects in 33 CFR Part 117

Bridges.

Regulations

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(g); Department of
Homeland Security Delegation No. 0170.1; section 117.255 also issued
under the authority of Pub. L. 102-587, 106 Stat. 5039.

0
2. Sec. 117.1005 is revised to read as follows:

Sec. 117.1005 Chincoteague Channel.

The draw of the SR 175 Bridge, mile 3.5, at Chincoteague shall open
on demand from midnight to 6 a.m., and every one and a half hours from
6 a.m. to midnight (at 6 a.m., 7:30 a.m., 9 a.m., 10:30 a.m., 12 p.m.,
1:30 p.m., 3 p.m., 4:30 p.m., 6 p.m., 7:30 p.m., 9 p.m. 10:30 p.m. and
midnight); except from 7 a.m. to 5 p.m. on the last consecutive
Wednesday and Thursday in July, the draw need not be opened.

Dated: November 1, 2006.
L.L. Hereth,
Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard
District.
[FR Doc. 06-9237 Filed 11-15-06; 8:45 am]

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