03-28814. Drawbridge Operation Regulation; Canaveral Barge Canal, Cape Canaveral, Brevard County, FL

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is changing the operating regulations of the Christa McAuliffe Bridge, SR 3, across the Canaveral Barge Canal at Cape Canaveral, Florida. Under this final rule, the bridge need open only twice an hour from 6 a.m. to 10 p.m. for vessel traffic, except during the morning and evening rush hours when the bridge may remain closed to facilitate vehicular traffic. The rule will also require the bridge to open with 3 hours notice from 10:01 p.m. to 5:59 a.m. This change will improve the flow of vehicular traffic without significantly impacting the needs of navigation.

DATES:

This rule is effective December 19, 2003.

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 [CGD07-02-160] and are available for inspection or copying at Commander (obr), Seventh Coast Guard District, 909 SE 1st Avenue, Room 432, Miami, FL 33131, between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays. The Bridge Branch of the Seventh Coast Guard District maintains the public docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT:

Mr. Barry Dragon, Project Officer, Seventh Coast Guard District, Bridge Branch, at [phone].

SUPPLEMENTARY INFORMATION:

Regulatory History

On May 20, 2003, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Canaveral Barge Canal, Cape Canaveral, Brevard County, FL, in the Federal Register (68 FR 27504). We received two letters commenting on the proposed rule. No public meeting was requested, and none was held.

Background and Purpose

The Christa McAuliffe Bridge, SR 3, across the Canaveral Barge Canal is a twin, double bascule leaf bridge with a vertical clearance of 21.6 feet at mean high water and a horizontal clearance of 90.3 feet. The current operating regulations, published in 33 CFR 117.273(a), provide for the bridge to open on signal from 6 a.m. to 10 p.m. except that, from 6:15 a.m. to 7:45 a.m. and from 3:30 p.m. to 5:15 p.m., Monday through Friday, except Federal holidays, the bridge need not open for the passage of vessels. From 10:01 p.m. to 5:59 a.m., everyday, the bridge shall open on signal if at least three hours notice is given to the bridge tender. The bridge shall open as soon as possible for the passage of public vessels of the United States, tugs and tows and vessels in distress. The local residents requested a change to the current operating schedule to ease the flow of vehicular traffic on and off of Cape Canaveral through their neighborhood. On May 22, 2002, a temporary final rule was published in the Federal Register (67 FR 35903) to facilitate repairs to the bridge. In pertinent part, for four months, from 8:15 a.m. to 3 p.m., Monday through Friday except Federal holidays, the draw opened on the hour and half hour for the passage of vessels. This temporary change to the bridge openings for a limited time during the day met the reasonable needs of navigation and improved the flow of vehicular traffic in the neighborhood while facilitating repairs to the bridge. In addition, the difference between the number of bridge openings under the temporary rule and the historical number of bridge openings under the existing, permanent rule is minimal. Accordingly, based on the results of the temporary rule and the minimal difference in bridge openings, the final rule will meet the reasonable needs of navigation on this waterway.

Discussion of Comments and Changes

We received two comments concerning this rule, one from the Florida Division of Historical Resources, which determined that this rule did not affect historical properties, and one from a concerned citizen, which stated that the rule would not relieve vehicular traffic congestion due to the dynamics of vehicular traffic routing problems in a nearby intersection. While the intersection in question may contribute to overall traffic difficulties, this rule will assist in easing traffic flow during peak vehicular hours of movement to and from Cape Canaveral.

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). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The final rule only slightly modifies the current closure periods, from 6:15 a.m. to 7:45 a.m. and 3:30 p.m. to 5:15 p.m., to 6:15 a.m. to 8:15 a.m. and 3:10 p.m. to 5:59 p.m. The final rule also continues to provide for regular openings, from 6 a.m. to 10 p.m., twice an hour, which results in almost the same number of openings provided under the existing rule.

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.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they can 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).

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 will 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 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

We have analyzed this rule under Commandant Instruction M16475.1D, 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 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. Coast Guard categorical exclusions include the promulgation of operating regulations for drawbridges by the Bridge Administration Program.

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

1. The authority citation for part 117 continues to read as follows:

Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); Section 117.255 also issued under authority of Pub. L. 102-587, 106 Stat. 5039.

2. § 117.273(a) is revised to read as follows:

§ 117.273

Canaveral Barge Canal.

(a) The draws of the Christa McAuliffe bridge, SR 3, mile 1.0, across the Canaveral Barge Canal need only open daily for vessel traffic on the hour and half-hour from 6 a.m. to 10 p.m.; except that from 6:15 a.m. to 8:15 a.m. and from 3:10 p.m. to 5:59 p.m., Monday through Friday, except Federal holidays, the bridge need not open. From 10:01 p.m. to 5:59 a.m., everyday, the bridge shall open on signal if at least 3 hours notice is given to the bridge tender. The bridge shall open as soon as possible for the passage of tugs with tows, public vessels of the United States and vessels in distress.

* * * * *

Dated: October 31, 2003.

Harvey E. Johnson, Jr.,

Rear Admiral, U.S. Coast Guard Commander, Seventh Coast Guard District.