Drawbridge Operation Regulations; Lewes and Rehoboth Canal, Lewes, DE and Rehoboth, DE; Mispillion River, Milford, DE

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is changing the drawbridge operation regulations of three Delaware Department of Transportation (DelDOT) bridges: the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes, the SR 14A Bridge, at mile 6.7, in Rehoboth, and the S14 Bridge, at mile 11.0, across Mispillion River at Milford, DE. This final rule will allow the Savannah Road/SR 18 Bridge to open on signal if 4 hours advance notice is given and allow the SR 14A and S14 Bridges to open on signal if 24 hours advance notice is given. This change will provide longer advance notification for vessel openings from 4 hours to 24 hours while still providing for the reasonable needs of navigation.

DATES:

This rule is effective March 9, 2007.

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 CGD05-06-089 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 October 5, 2006, we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Lewes and Rehoboth Canal, Mispillion River, DE” in the Federal Register (71 FR 58776). We received one comment on the proposed rule. No public meeting was requested, and none was held.

Background and Purpose

DelDOT, who owns and operates the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes, the SR 14A Bridge, at mile 6.7, in Rehoboth, and the S14 Bridge, at mile 11.0, across Mispillion River at Milford, requested longer advance notification for vessel openings from 2 hours to 24 hours for the following reasons:

Lewes and Rehoboth Canal

In the closed-to-navigation position, the Savannah Road/SR 18 Bridge, at mile 1.7, in Lewes and the SR 14A Bridge, at mile 6.7, in Rehoboth, have vertical clearances of 15 feet and 16 feet, above mean high water, respectively. The existing operating regulation for these drawbridges is set out in 33 CFR 117.239, which requires the bridges to open on signal from May 1 through October 31 from 7 a.m. to 8 p.m. and from 8 p.m. to 7 a.m. if at least two hours notice is given. From November 1 through April 30, the draws shall open if at least 24 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, DelDOT requested that we amend the current operating regulation by requiring the draw spans to open on signal if at least 24 hours notice is given year-round.

Mispillion River

The S14 Bridge, at mile 11.0 in at Milford, has a vertical clearance of five feet, above mean high water, in the closed-to-navigation position. The existing regulation is listed at 33 CFR 117.241, which requires the bridge to open on signal if at least two hours notice is given. Due to the infrequency of requests for vessel openings of the drawbridge for the past 10 years, DelDOT requested that we amend the current operating regulation by requiring the draw spans to open on signal if at least 24 hours notice is given year-round.

Discussion of Comments and Changes

The Coast Guard received one comment on the NPRM from the City of Lewes (the City). The City requested that, with respect to the Savannah Road/SR 18 Bridge, the Coast Guard provide for opening the bridge on four-hour notice between May 1 and October 30 of each year, instead of the 24-hour notice proposed in the NRPM.

DelDOT indicated that to ensure reliability and safe performance by bridge operators, a four to six-hour advance notice is actually needed to respond to requests by boaters. Therefore, the Coast Guard considered the change to require at least four hours advance notice by boaters to be safer and more reliable for navigation than the 24-hour proposal and the final rule was changed to reflect this modification.

Discussion of Rule

Lewes and Rehoboth Canal

The Coast Guard will revise 33 CFR 117.239, which governs the Delaware highway bridges, at miles 1.7 and 6.7, both at Rehoboth. The bridge names, the statute mile points and the localities in the paragraph will be changed from the “Delaware highway bridges miles 2.0 and 7.0 both at Rehoboth” to the “Savannah Road/SR18 Bridge, at mile 1.7, in Lewes” and the “SR 14A Bridge, at mile 6.7, in Rehoboth”. These changes will accurately reflect the proper information for these drawbridges.

The current paragraph will be divided into paragraphs (a) and (b). Paragraph (a) will contain the final rule for the Savannah Road/SR 18 Bridge, at mile 1.7 in Lewes and will state that the draw shall open on signal if at least four hours notice is given.

Paragraph (b) will contain the final rule for the SR 14A Bridge, at mile 6.7, in Rehoboth. The final rule will require the drawbridge to open on signal if at least 24 hours notice is given.

Mispillion River

The Coast Guard will amend 33 CFR 117.241, which governs the S14 Bridge, at mile 11.0, at Milford by revising the paragraph to read that the draw shall open on signal if at least 24 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).

This conclusion is 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 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 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 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 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

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 the authority of Pub. L. 102-587, 106 Stat. 5039.

2. Revise § 117.239 to read as follows:

3. Revise § 117.241 to read as follows: