Drawbridge Operation Regulations: Mystic River, CT

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard has changed the drawbridge operation regulations that govern the U.S. 1 Bridge, mile 2.8, across the Mystic River at Mystic, Connecticut. This final rule changes the time the U.S. 1 Bridge opens between May 1 and October 31, from a quarter past the hour to twenty minutes before the hour. This action is expected to allow vessel traffic to transit with fewer delays through the two bridges in Mystic, Connecticut.

DATES:

This rule is effective July 2, 2004.

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 (CGD01-03-115) and are available for inspection or copying at the First Coast Guard District, Bridge Branch Office, 408 Atlantic Avenue, Boston, Massachusetts 02110, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays. The First Coast Guard Bridge Branch maintains the public docket for this rulemaking.

FOR FURTHER INFORMATION CONTACT:

Mr. John McDonald, Project Officer, First Coast Guard District, (617) 223-8364.

SUPPLEMENTARY INFORMATION:

Regulatory Information

On March 1, 2004, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Mystic River, Connecticut, in the Federal Register (69 FR 9562). No public hearing was requested and none was held.

Background and Purpose

The U.S. 1 Bridge has a vertical clearance of 4 feet at mean high water and 7 feet at mean low water in the closed position. The existing regulations, listed at 33 CFR § 117.211(b), require the bridge to open on signal with a maximum delay of up to twenty minutes; except that, from May 1 through October 31, from 7:15 a.m. to 7:15 p.m., the draw need only open once an hour, at quarter past the hour. From November 1 through April 30, from 8 p.m. to 4 a.m., the draw shall open on signal after a six-hour advance notice is given.

The Coast Guard received a complaint in the spring of 2003, from a mariner, stating that the Mystic River U.S. 1 Bridge was not opening as required by the existing operation regulations at the designated 12:15 p.m. opening period.

The Coast Guard convened a meeting attended by the bridge owner, Connecticut Department of Transportation, the Mystic Connecticut Chamber of Commerce, and several commercial marine operators. It was discovered at that meeting that the bridge owner was not opening the U.S. 1 Bridge at 12:15 p.m. because they believed that the operation regulations had been changed in 1992. However, the Coast Guard only authorized a 90-day test deviation in 1992, to help determine if the elimination of the 12:15 p.m. opening was a reasonable proposal.

The Mystic Connecticut Chamber of Commerce then told the Coast Guard at the 2003 meeting that they believed that opening the U.S. 1 Bridge during the noontime period each day would cause severe vehicular traffic delays in downtown Mystic. The Coast Guard decided to conduct another temporary deviation for 90 days to determine if opening the U.S. 1 Bridge during the noontime period would adversely affect vehicular traffic. That 90-day temporary deviation, published at (68 FR 41716), was in effect from July 18, 2003, through October 15, 2003.

Additionally, the Mystic Connecticut Chamber of Commerce Marine Affairs Committee requested that the U.S. 1 Bridge opening times during the 2003 temporary test deviation be moved from a quarter past each hour to twenty minutes before each hour to help ease marine traffic congestion. The railroad bridge, downstream of the U.S. 1 Bridge, is more frequently closed to marine traffic during the first half of each hour as a result of the rail traffic schedule. By moving the opening times of the U.S. 1 Bridge to 20 minutes before each hour, vessel traffic transiting the U.S. 1 Bridge would be less likely to conflict with railroad traffic at the next bridge, thus helping relieve marine traffic congestion.

After the 2003 test deviation concluded we reviewed the vehicular traffic counts, bridge opening logs, and all the on-scene observations taken by Coast Guard personnel. We determined, after review of all the above data, that the noontime bridge openings did not adversely affect vehicular traffic. However, shifting the U.S. 1 Bridge opening periods from a quarter past each hour to twenty minutes before each hour did produce less delays to vessel traffic transiting the two bridges in Mystic because the railroad bridge was used more often during the first half of each hour for the passage of rail than during the second half of each hour.

As a result of all the above information the Coast Guard determined that the U.S. 1 Bridge opening schedule should be changed to require the U.S. 1 Bridge to open on signal at twenty minutes before each hour, instead of at a quarter past each hour during the summer months.

This rule would also eliminate the provision in the regulations at § 117.211 (b) that permits openings at the U.S. 1 Bridge to be delayed up to 20 minutes after a request is given. There is no present justification to delay marine traffic for up to twenty minutes.

Also, the provision in the existing regulations at 33 CFR 117.211(a)(3), that requires the draw to open immediately for public vessels of the United States, State and local vessels used for public safety, and vessels in emergency situations, will be eliminated from the regulations because it is now listed at 33 CFR 117.31, subpart (A), General Requirements.

Discussion of Comments and Changes

We received thirteen comment letters in response to the proposed rulemaking. Eight comment letters were in favor of the proposed rule change and four comment letters opposed the rulemaking. We also received a no objection comment letter.

The eight comment letters in favor of the proposed rule change stated that opening the U.S. 1 Bridge at twenty minutes before each hour allowed vessel traffic to transit up and downstream with less delays and did not adversely impact vehicular traffic in any way.

One comment letter in opposition to changing the bridge opening times from 15 minutes past each hour to twenty minutes before each hour stated that changing the opening time could cause confusion and result in traffic delays because mariners and motorists have become accustomed to the quarter past the hour bridge opening time over the years.

The second comment letter in opposition stated that the cost to implement the rule change was wasteful and that any change to the opening times would cause public confusion and disruption.

The third comment letter in opposition stated the basis for shifting the U.S. 1 Bridge opening times to the second half of each hour because most train traffic crossed the railroad bridge during the first half of each hour was risky since the trains were rarely on time.

The fourth comment letter in opposition stated that people who needed to cross the bridge to go to work on the hour would be required to depart their homes earlier to compensate for bridge openings at twenty minutes before the hour. No factual data was submitted to support any of the four negative comment letters.

Factual data was used by the Coast Guard to justify changing the U.S. 1 Bridge openings to twenty minutes before each hour instead of a quarter past each hour. The Coast Guard examined the 2003 bridge opening records from the nearby railroad bridge downstream from the U.S. 1 Bridge. According to those bridge opening records, the downstream railroad bridge received rail traffic more often during the first half of each hour than during the second half of each hour. Therefore, moving the U.S. 1 Bridge openings to the second half of each hour would allow vessel traffic to transit through both bridges with fewer delays. Additionally, other data collected indicates utilizing this schedule will not result in an adverse affect on vehicular traffic in downtown Mystic. As a result of all the above information no changes have been made to this final rule.

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 the U.S. 1 Bridge will continue to open once each hour at twenty before the hour instead of a quarter past each hour.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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 less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b), that this rule will not have a significant economic impact on a substantial number of small entities.

This conclusion is based on the fact that the U.S. 1 Bridge will continue to open once each hour at twenty minutes before the hour instead of a quarter past each hour.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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 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 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 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 does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have 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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs 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 final rule under Commandant Instruction M16475.1D, 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 rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. It has been determined that this final rule does not significantly impact the environment.

List of Subjects in 33 CFR Part 117

• Bridges

Regulations

For the reasons set out 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. In § 117.211, revise paragraphs (a)(3), (b) introductory text and (b)(1) to read as follows: