[Federal Register Volume 74, Number 33 (Friday, February 20, 2009)]
[Proposed Rules]
[Pages 7844-7847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3561]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2009-0051]
RIN 1625-AA09


Drawbridge Operation Regulations; Atlantic Intracoastal Waterway 
(AIWW), Scotts Hill, NC

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to change the drawbridge operation 
regulations of the Figure Eight Swing Bridge, at AIWW mile 278.1, at 
Scotts Hill, NC. This proposal would allow for the drawbridge to open 
on signal every hour on the half hour for the passage of pleasure 
vessels. At all times, the draw will continue to open on signal for 
commercial vessels. The proposed change would result in more efficient 
use of the bridge.

DATES: Comments and related material must reach the Coast Guard on or 
before April 6, 2009.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2009-0051 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (3) Hand delivery: Room W12-140 on the Ground Floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed

[[Page 7845]]

rule, call Gary S. Heyer, Bridge Management Specialist, Fifth Coast 
Guard District, at (757) 398-6629. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided. We have an agreement with the 
Department of Transportation (DOT) to use the Docket Management 
Facility. Please see DOT's ``Privacy Act'' paragraph below.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0051), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. We recommend that you include your name and a mailing address, 
an e-mail address, or a phone number in the body of your document so 
that we can contact you if we have questions regarding your submission. 
You may submit your comments and material by electronic means, mail, 
fax, or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 81/2 by 11 inches, suitable for copying 
and electronic filing. If you submit them by mail and would like to 
know that they reached the Facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov at 
any time. Enter the docket number for this rulemaking (USCG-2009-0051) 
in the Search box, and click ``Go>>.'' You may also visit either the 
Docket Management Facility in Room W12-140 on the ground floor of the 
DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays or 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.

Privacy Act

    Anyone can search the electronic form of all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review the Department of 
Transportation's Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477), or you may visit http://DocketsInfo.dot.gov.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility 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 Figure Eight Homeowner Association Inc., (FEHAI), is 
responsible for the operation of the Figure Eight Swing Bridge, at AIWW 
mile 278.1, at Scotts Hill, NC.
    In the closed-to-navigation position, the Figure Eight Swing Bridge 
has a vertical clearance of 20 feet, above mean high water (MHW). Also, 
the vertical clearance in the open position at this location is limited 
to 85 feet, above MHW, by the overhead power line. The existing 
regulation is set out in 33 CFR 117.821(a)(3) which requires the draw 
to open on signal at all times for commercial vessels, and open on the 
hour and half hour for pleasure craft.
    The FEHAI requested a change to the existing regulations in an 
effort to improve the schedule for both roadway and waterway users. The 
swing bridge provides the only route on and off Figure Eight Island. 
This proposal would not change the requirement for the bridge to open 
on signal at any time for commercial and government vessels. The 
proposal would facilitate pleasure craft in navigating the AIWW, while 
also helping to ease vehicular traffic congestion. Most vessels 
transiting the area in the spring and fall are operated by owners 
commonly referred to as ``snowbirds''. Owners of these transitory 
recreational vessels are either traveling north to south towards a 
warmer climate in the fall or south to north towards a cooler climate 
in the spring which can result in frequent bridge openings due to 
increased number of vessels. (See Table A)

                                                                         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
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      147           97          160          297          410          313          311          164          160          340         399         227
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                                                                1Bridge Openings for 2006
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      JAN          FEB          MAR          APR          MAY          JUN          JUL          AUG         SEPT            OCT       NOV          DEC
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      156           80          162          309          388          308          237          163          164          331         354         172
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                                                                1Bridge Openings for 2007
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      JAN          FEB          MAR          APR          MAY          JUN          JUL          AUG         SEPT            OCT       NOV          DEC
--------------------------------------------------------------------------------------------------------------------------------------------------------
      151          100          144          268          373          285          184          184          132          311         296         106
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[[Page 7846]]

    Also, the Coast Guard examined the operation of the S.R. 74 Bridge, 
at AIWW mile 283.1, at Wrightsville Beach located just south of the 
Figure Eight Swing Bridge. The S.R. 74 Bridge provides vessel openings 
on the hour between 7 a.m. to 7 p.m., except that from 7 a.m. to 11 
a.m. on the third and fourth Saturday in September of every year, the 
draw need not open for vessels due to the Triathlon run. The proposed 
change would allow pleasure vessels to proceed safely through each of 
these bridges without delay.

Discussion of Proposed Rule

    The Coast Guard proposes to amend 33 CFR 117.821(a)(3) by requiring 
openings of the draw every hour on the half hour for the passage of 
pleasure vessels. At all times, the draw will continue to open on 
signal for commercial vessels.

Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders related to rulemaking. Below we summarize our 
analyses based on 13 of these statutes or executive orders.

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.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation 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 of 
recreational vessels can plan their transits in accordance with the 
scheduled bridge openings to minimize delays and recreational vessels 
that can safely transit under the bridge while the draw span is in a 
closed position may do so at any time.

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 could affect the following entities, some of 
which might be small entities: The owners or operators of recreational 
vessels needing to transit through the bridge.
    This action will not have a significant economic impact on a 
substantial number of small entities because recreational vessels that 
can safely transit under the bridge while the draw span is in a closed 
position may do so at any time. Also, other mariners of recreational 
vessels can plan their trips in accordance with the scheduled bridge 
openings to minimize delays.
    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 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 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

[[Page 7847]]

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 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 and Department of Homeland Security Management Directive 
5100.1, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that this action is not likely to 
have a significant effect on the human environment. Therefore, this 
rule is categorically excluded, under section 2.B.2. Figure 2-1, 
paragraph 32(e), of the Instruction and neither an environmental 
assessment nor an environmental impact statement is required. This rule 
involves the operating regulations or procedures for drawbridges. No 
environmental analysis checklist is required. We seek any comments or 
information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 117

    Bridges.

    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; 33 CFR 1.05-1; Department of Homeland 
Security Delegation No. 0170.1.

    2. Revise Sec.  117.821(a)(3) to read as follows:


Sec.  117.821  Atlantic Intracoastal Waterway, Albermarle Sound to 
Sunset Beach.

* * * * *
    (3) Figure Eight Swing Bridge, mile 278.1, at Scotts Hill, NC, the 
draw need only open every hour on the half hour.
* * * * *

    Dated: February 4, 2009.
Fred M. Rosa, Jr.,
Rear Admiral, United States Coast Guard Commander, Fifth Coast Guard 
District.
[FR Doc. E9-3561 Filed 2-19-09; 8:45 am]
BILLING CODE 4910-15-P