[Federal Register Volume 69, Number 250 (Thursday, December 30, 2004)]
[Proposed Rules]
[Pages 78373-78375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-28548]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-04-215]
RIN 1625-AA09


Drawbridge Operation Regulations; Chincoteague Channel, 
Chincoteague, VA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to change the regulations that govern 
the operation of the SR 175 Bridge, at mile 3.5, at Chincoteague, 
Virginia. The proposal would require hourly openings of the draw from 6 
a.m. to Midnight year-round; except from 7 a.m. to 5 p.m. on the last 
consecutive Wednesday and Thursday in July, the draw need not be 
opened. At all other times, the draw need not open. The proposed change 
would reduce vehicular traffic congestion to increase public safety and 
to extend the structural and operational integrity of the movable span 
while still balancing the needs of marine and vehicular traffic.

DATES: Comments and related material must reach the Coast Guard on or 
before February 14, 2005.

ADDRESSES: You may mail comments and related material to Commander 
(obr), Fifth Coast Guard District, Federal Building, 1st Floor, 431 
Crawford Street, Portsmouth, VA 23704-5004. The Fifth Coast Guard 
District maintains the public docket for this rulemaking. Comments and 
material received from the public, as well as documents indicated in 
this preamble as being available in the docket, will become part of 
this docket and will be available for inspection or copying at 
Commander (obr), Fifth Coast Guard District between 8 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

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

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking CGD05-04-
215, indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like a return 
receipt, please enclose a stamped, self-addressed postcard or envelope. 
We will consider all submittals received during the comment period. We 
may change this proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Commander (obr), Fifth Coast Guard 
District at the address under ADDRESSES explaining why one would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

Background and Purpose

    The Virginia Department of Transportation (VDOT) owns and operates 
this swing-type bridge. The current regulation requires the SR 175 
Bridge, mile 3.5, at Chincoteague to open on signal except the draw may 
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.
    On behalf of the Chincoteague Town Council (the Council), residents 
and business owners in the area, VDOT has requested a change to the 
existing regulations for the SR 175 Bridge. This proposal is an effort 
to schedule the number of drawbridge openings thereby reducing traffic 
congestion for public safety. By scheduling the number of openings this 
proposal will also extend the structural and operational integrity of 
the movable span, while balancing the needs of mariners and vehicular 
traffic transiting in and around this seaside resort area. SR 175 
highway is also the principal arterial route that serves as the major 
evacuation highway in the event of emergencies or tidal flooding.
    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 an operation to 
test an alternate drawbridge operation schedule for 90 days and to 
solicit comments from the public. In accordance with the temporary 
deviation, 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 of July, the draw need not be opened. Finally, 
at all other times, the draw was not opened.
    The Coast Guard received six letters and four petitions commenting 
on the provisions of the temporary deviation. Several comments from 
residents of the Town of Chincoteague favored the two-hour opening 
schedule. The commercial vessel owners favored a less restrictive 
hourly opening schedule. To ease vehicular traffic congestion, VDOT 
requested the movement of marine traffic be regulated. The Coast Guard 
reviewed the vehicle traffic information and bridge logs provided by 
VDOT. Bridge opening log data from 2001 to 2003 revealed that the 
highest concentration of vessel and vehicular traffic occurred during 
the peak tourist season from April to October. VDOT submitted a weekly 
vehicular traffic count for August 2004. The eastbound and westbound 
traffic counts revealed for August 19, 20, 21 and 22, that 
approximately 8150, 9729, 8365 and 7447 vehicles cross the SR 175 
Bridge, respectively.
    VDOT records reveal an increase in yearly bridge openings. For 2001 
to 2003, the bridge opened for vessels 1789, 2063 and 2337 times during 
these years, respectively. During the peak tourist season for the same 
period, the bridge opened for vessels 1356, 1558 and 1761 times, 
respectively. With an average of only 12 openings per day (yearly) or 
approximately one opening per hour, restricting openings of the 
drawbridge hourly from 6 a.m. to midnight is not expected to seriously 
disrupt marine traffic, and is expected to substantially reduce 
vehicular traffic congestion.
    This change is being requested to make the operation of the SR 175 
Bridge more efficient. It will reduce vehicular traffic congestion to 
increase public safety and to extend the structural and operational 
integrity of the movable span while still balancing the needs of marine 
and vehicular traffic.

Discussion of Proposed Rule

    The Coast Guard proposes to amend the regulations governing the SR 
175 Bridge, mile 3.5, at Chincoteague, which

[[Page 78374]]

currently operates on signal, except the draw may 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. At all other times, the 
draw need not open. The Coast Guard proposes to amend 33 CFR Sec.  
117.1005 by inserting a new provision, which would limit the required 
openings of the draw year-round from 6 a.m. to midnight to once an hour 
with closure periods from 7 a.m. to 5 p.m. on the last consecutive 
Wednesday and Thursday in July of every year; and at all other times, 
the draw need not open.

Regulatory Evaluation

    This proposed 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).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. We reached this conclusion based 
on the fact that the proposed changes 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 proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed 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 delay.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

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 proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Waverly W. Gregory, Jr., Bridge 
Administrator, Fifth Coast Guard District, (757) 398-6222. 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 proposed 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 this proposed 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 proposed 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 proposed 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 proposed 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 proposed 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 proposed 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 proposed 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

[[Page 78375]]

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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under 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 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 proposed 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 proposes 
to amend 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 the authority of Pub. L. 102-587, 106 Stat. 5039.

    2. Section 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 the hour from 6 a.m. to Midnight; except that from 7 a.m. to 5 p.m. 
on the last consecutive Wednesday and Thursday in July of every year 
and from Midnight to 6 a.m. every day the draw need not be opened.

    Dated: December 20, 2004.
Ben R. Thomason,
Captain, U. S. Coast Guard, Acting Commander, Fifth Coast Guard 
District.
[FR Doc. 04-28548 Filed 12-29-04; 8:45 am]
BILLING CODE 4910-15-P