06-9237. Drawbridge Operation Regulations; Chincoteague Channel, Chincoteague, VA

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

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 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 [phone].

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

Bridge Openings for 2005
JAN	FEB	MAR	APR	MAY	JUN	JUL	AUG	SEPT	OCT	NOV	DEC
62	112	60	163	453	330	316	317	291	212	200	134
Boat Passages for 2005
56	122	61	187	642	606	559	622	377	368	268	160

Table B

Bridge Openings for 2006
JAN	FEB	MAR	APR	MAY	JUN	JUL	AUG	SEPT	OCT	NOV	DEC
134	141	82	181	359	271	265	236	122	106	NA	NA
Boat Passages for 2006
167	177	88	279	710	460	431	361	145	125	NA	NA

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

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.

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 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

For the reasons discussed in the preamble, the Coast Guard amends 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(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.

2. § 117.1005 is revised to read as follows:

§ 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.