[Federal Register Volume 71, Number 175 (Monday, September 11, 2006)]
[Rules and Regulations]
[Pages 53323-53325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14984]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-06-044]
RIN 1625-AA09


Drawbridge Operation Regulations; Broad Creek, Cedar Creek, and 
Nanticoke River, DE

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is changing the drawbridge operation 
regulations of four Delaware Department of Transportation (DelDOT) 
bridges: the Poplar Street Bridge, at mile 8.2, and the U.S. 13A 
Bridge, at mile 8.2, both across Broad Creek in Laurel, DE; the SR 36 
Bridge, at mile 0.5, over Cedar Creek in Cedar Beach; and SR 13 Bridge, 
at mile 39.6, across Nanticoke River in Seaford, DE. This final rule 
allows the bridges to open on signal if advance notice is given at 
different times from 4 to 48 hours. This change will eliminate the 
continual attendance of draw tender services during the non-peak 
boating periods while still providing for the reasonable needs of 
navigation.

DATES: This rule is effective October 11, 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 CGD05-06-044 and are available for inspection or 
copying at Commander (dpb), Fifth Coast Guard District, Federal 
Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 
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: Waverly W. Gregory, Jr., Bridge 
Administrator, Fifth Coast Guard District, at (757) 398-6222.

SUPPLEMENTARY INFORMATION: 

Regulatory History

    On June 29, 2006, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulation; Broad Creek, Cedar 
Creek, and Nanticoke River, DE'' in the Federal Register (71 FR 37024). 
We received no comments on the proposed rule. No public meeting was 
requested, and none was held.

Background and Purpose

    DelDOT, who owns and operates the Poplar Street Bridge and the U.S. 
13A Bridge, at mile 8.2, both across Broad Creek in Laurel; the SR 36 
Bridge, at mile 0.5, over Cedar Creek in Cedar Beach; and the SR 13 
Bridge, at mile 39.6, across Nanticoke River in Seaford, requested 
advance notification for vessel openings and a reduction in draw tender 
services for the following explanations:

Broad Creek

    In the closed-to-navigation position, the Poplar Street Bridge, 
mile 8.2, and the U.S. 13A Bridge, mile 8.2, both in Laurel, have 
vertical clearances of five feet and two feet, above mean high water, 
and eight feet and five feet, above mean low water, respectively. The 
existing operating regulations for these drawbridges are set out in 33 
CFR 117.233, which requires the bridges, along with the Conrail Bridge 
(at mile 8.0) in Laurel, to open on signal if at least four hours 
notice is given.
    DelDOT provided information to the Coast Guard about the conditions 
and reduced operational capabilities of the draw spans. Due to the 
infrequency of requests for vessel openings of the drawbridge for the 
past 10 years, the final rule changes the current operating regulations 
by requiring the draw spans

[[Page 53324]]

to open on signal if at least 48 hours notice is given year-round.

Cedar Creek

    The SR 36 Bridge, at mile 0.5 in Cedar Beach, has a vertical 
clearance of two feet, above mean high water, and six feet, above mean 
low water, in the closed-to-navigation position. The existing 
regulation is listed at 33 CFR 117.5, which requires the bridge to open 
on signal.
    Bridge opening data submitted by DelDOT revealed significantly 
fewer openings at certain hours of the night in the spring and summer 
months; and during the fall and winter months. The bridge logs also 
show the majority of drawbridge openings were performed year-round 
between the hours of 6 a.m. and 6:30 p.m. This final rule requires the 
draw to open on signal from April 1 through November 30, except from 2 
a.m. to 4 a.m., when at least four hours notice must be given. From 6 
a.m. to 6:30 p.m., from December 1 through March 31, the draw will open 
on signal. At all other times, the draw will open on signal if at least 
four hours notice is given.
    These changes reduce bridge tender services required at the SR 36 
Bridge due to the decrease in vessel opening requests.

Nanticoke River

    The SR 13 Bridge, at mile 39.6, in Seaford has a vertical clearance 
of three feet, above mean high water and seven feet, above mean low 
water in the closed-to-navigation position. The existing regulation 
found at 33 CFR 117.5 requires the bridge to open on signal.
    Bridge opening data submitted by DelDOT revealed significantly 
fewer openings between the hours of 8 a.m. and 6 p.m. in the spring and 
summer months; and on weekdays in the fall and winter months.
    The final rule requires the draw to open on signal from 8 a.m. to 6 
p.m. from April 1 through October 31; and at all other times, if at 
least four hours notice is given. From 7:30 a.m. to 3 p.m., from 
November 1 through March 31, on weekends (Saturdays and Sundays), the 
draw will open on signal; and at all other times, if at least four 
hours notice is given.
    These changes reduce bridge tender services required at the SR 13 
Bridge due to the decrease in vessel opening requests.

Discussion of Comments and Changes

    The Coast Guard did not receive any comments on the NPRM. 
Therefore, no changes were made to the final rule.

Discussion of Rule

Broad Creek

    The Coast Guard is revising 33 CFR 117.233, which governs the 
Conrail Bridge, mile 8.0, the Poplar Street bridge, mile 8.2 and the 
U.S. 13A bridge, mile 8.2, all in Laurel.
    The current regulation is divided into paragraphs (a) and (b) by 
this final rule. New paragraph (a) contains the existing rule for the 
Conrail Bridge, mile 8.0, in Laurel and states that the draw shall open 
on signal if at least four hours notice is given.
    Paragraph (b) contains the requirements for the Poplar Street 
Bridge, mile 8.2 and the U.S. 13A Bridge, mile 8.2, both in Laurel. The 
final rule requires the drawbridges to open on signal if at least 48 
hours notice is given.

Cedar Creek

    A new Sec.  117.234, allows SR 36 Bridge, mile 0.5 in Cedar Beach, 
to open on signal from April 1 through November 30, except from 2 a.m. 
to 4 a.m., if at least four hours notice is given.
    From December 1 through March 31, from 6 a.m. to 6:30 p.m., the 
draw will open on signal; and at all other times, if at least four 
hours notice is given.

Nanticoke River

    In 33 CFR 117.243, this final rule redesignates paragraphs (a) 
through (c) as paragraph (a)(1) through (a)(3). The redesignated 
paragraph (a) contains the existing rules for the Norfolk Southern 
Railway Bridge, mile 39.4, at Seaford. The contact information for 
advance notice at the Norfolk Southern Railway Bridge is changed to the 
``train dispatcher'' vice ``bridge tender.'' the telephone numbers are 
changed to (717) 215-0379 or (609) 412-4338.
    The redesignated paragraph (b) contains the requirements for the SR 
13 Bridge, mile 39.6, in Seaford. The final rule requires the draw to 
open on signal from 8 a.m. to 6 p.m. from April 1 through October 31; 
and at all other times, if at least four hours notice is given. From 
7:30 a.m. to 3 p.m., from November 1 through March 31, on weekends 
(Saturdays and Sundays), the draw will open on signal; and at all other 
times, if at least four hours notice is given.

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).
    We expect the economic impact of this 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 these 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 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 rule would not have a significant economic impact on a 
substantial number of small entities for the following reason. 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 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

[[Page 53325]]

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, 
eliminates 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.

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; 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.


0
2. Revise Sec.  117.233 to read as follows:


Sec.  117.233  Broad Creek.

    (a) The draw of the Conrail Bridge, mile 8.0 at Laurel, shall open 
on signal if at least four hours notice is given.
    (b) The draws of the Poplar Street Bridge, mile 8.2, and the U.S. 
13A Bridge, mile 8.2, all at Laurel, shall open on signal if at least 
48 hours notice is given.

0
3. Add new Sec.  117.234 to read as follows:


Sec.  117.234  Cedar Creek.

    The SR 36 Bridge, mile 0.5 in Cedar Beach, shall open on signal. 
From April 1 through November 30 from 2 a.m. to 4 a.m.; and from 
December 1 through March 31 from 6:30 p.m. to 6 a.m., the draw shall 
open on signal if at least four hours notice is given.

0
4. Revise Sec.  117.243 to read as follows:


Sec.  117.243  Nanticoke River.

    (a) The draw of the Norfolk Southern Railway Bridge, mile 39.4 in 
Seaford, will operate as follows:
    (1) From March 15 through November 15, the draw will open on signal 
for all vessels except that from 11 p.m. to 5 a.m. at least 2\1/2\ 
hours notice will be required.
    (2) At all times, from November 16 through March 14, the draw will 
open on signal if at least 2\1/2\ hours notice is given.
    (3) When notice is required, the owner operator of the vessel must 
provide the train dispatcher with an estimated time of passage by 
calling (717) 215-0379 or (609) 412-4338.
    (b) The draw of the SR 13 Bridge, mile 39.6 in Seaford, shall open 
on signal, except from 6 p.m. to 8 a.m., from April 1 through October 
31; from November 1 through March 31, Monday to Friday, and on Saturday 
and Sunday from 3:30 p.m. to 7:30 a.m., if at least four hours notice 
is given.

    Dated: August 25, 2006.
L.L. Hereth,
Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard 
District.
 [FR Doc. E6-14984 Filed 9-8-06; 8:45 am]
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