[Federal Register Volume 71, Number 221 (Thursday, November 16, 2006)]
[Rules and Regulations]
[Pages 66669-66673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9237]


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

    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.

[[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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