[Federal Register Volume 87, Number 239 (Wednesday, December 14, 2022)]
[Notices]
[Pages 76524-76526]
[FR Doc No: 2022-27054]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-96469; File No. SR-NYSEARCA-2022-61]

Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting
Proceedings To Determine Whether To Approve or Disapprove a Proposed
Rule Change To List and Trade the Shares of the Breakwave Tanker
Shipping ETF

December 8, 2022.
    On September 13, 2022, NYSE Arca, Inc. (``NYSE Arca'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to list and trade the shares (``Shares'') of the
Breakwave Tanker Shipping ETF (``Fund''). The proposed rule change was
published for comment in the Federal Register on September 27, 2022.\3\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 95853 (Sept. 21,
2022), 87 FR 58552 (``Notice'').
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    On November 2, 2022, pursuant to Section 19(b)(2) of the Act,\4\
the Commission designated a longer period within which to approve the
proposed rule change, disapprove the proposed rule change, or institute
proceedings to determine whether to disapprove the proposed rule
change.\5\ This order institutes proceedings under Section 19(b)(2)(B)
of the Act \6\ to determine whether to approve or disapprove the
proposed rule change.
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    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 96213, 87 FR 67513
(Nov. 8, 2022). The Commission designated December 26, 2022, as the
date by which it should approve, disapprove, or institute
proceedings to determine whether to disapprove the proposed rule
change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
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I. Summary of the Exchange's Proposal

    As described in more detail in the Notice,\7\ the Exchange proposes
to list and trade the Shares of the Fund under NYSE Arca Rule 8.200-E,
Commentary .02, which governs the listing and trading of Trust Issued
Receipts on the Exchange. The Fund will be a series of ETF Managers
Group Commodity Trust I (``Trust),\8\ and the Fund and the Trust will
be managed and controlled by their sponsor and investment manager, ETF
Managers Capital LLC (``Sponsor'').\9\
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    \7\ See Notice, supra note 3.
    \8\ The Exchange states that, on July 1, 2022, the Trust
submitted to the Commission on a confidential basis its draft
registration statement on Form S-1 (``Registration Statement'')
under the Securities Act of 1933. See Notice, 87 FR at 58552 n.5.
    \9\ The Sponsor is registered with the Commodity Futures Trading
Commission (``CFTC'') as a commodity pool operator and is a member
of the National Futures Association. Breakwave Advisors LLC
(``Breakwave'') is registered as a commodity trading advisor with
the CFTC and will serve as the Fund's commodity trading advisor.
ETFMG Financial LLC will be the Fund's distributor, and US Bancorp
Fund Services LLC will be the Fund's administrator and transfer
agent (``Administrator'' and ``Transfer Agent''). See id. at 58552-
53.
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    According to the Exchange, the Fund's investment objective will be
to provide investors with exposure to the daily change in the price of
tanker freight futures, before expenses and liabilities of the Fund, by
tracking the performance of a portfolio (``Benchmark Portfolio'')
consisting of the nearest calendar quarter of futures contracts on
specified indexes (individually, ``Reference Index'') that measure
prices for shipping crude oil (``Freight Futures'').\10\ Each Reference
Index is published each U.K. business day by the London-based Baltic
Exchange \11\ and measures the charter rate for shipping crude oil in a
specific size category of cargo ship and for a specific route. The two
Reference Indexes are: (1) the TD3C Index: Persian Gulf to China
270,000mt cargo (Very Large Crude Carrier or VLCC tankers); and (2) the
TD20 Index: West Africa to Europe, 130,000mt cargo (Suezmax
tankers).\12\ The value of each of the TD3C Index and TD20 Index is
disseminated daily at 4:00 p.m., London Time by the Baltic Exchange.
Such Reference Index information also is widely disseminated by
Reuters, Bloomberg, and/or other major market data vendors.\13\
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    \10\ See id. at 58553. According to the Exchange, Freight
Futures are primarily traded through broker members of the Forward
Freight Agreement Brokers Association (``FFABA''). Members of the
FFABA must be members of the Baltic Exchange and must be regulated
by the Financial Conduct Authority if resident in the U.K., or if
not resident in the U.K., by an equivalent body if required by the
authorities in the jurisdiction. See id. at 58555 n.10. Freight
Futures are quoted in U.S. dollars per metric ton, with a minimum
lot size of 1,000 metric tons. One lot represents freight costs to
transport in U.S. dollars. The nominal value of a contract is simply
the product of lots and Freight Futures prices. See id. at 58555.
    \11\ The Baltic Exchange, which is a wholly-owned subsidiary of
the Singapore Exchange, is a membership organization and an
independent source of maritime market information for the trading
and settlement of physical and derivative shipping contracts. See
id. at 58553 n.6.
    \12\ See id. at 58553. The Reference Indexes are published by
the Baltic Exchange's subsidiary company, Baltic Exchange
Information Services Ltd (``Baltic''), which publishes a wide range
of market reports, fixture lists and market rate indicators on a
daily and (in some cases) weekly basis. The Baltic indices, which
include the Reference Indexes, are an assessment of the price of
moving the major raw materials by sea. The indices are based on
assessments of the cost of transporting various bulk cargoes, both
wet (e.g., crude oil and oil products) and dry (e.g., coal and iron
ore), made by leading shipbroking houses located around the world on
a per ton and daily hire basis. The information is collated and
published by the Baltic Exchange. Procedures relating to
administration of the Baltic indices are set forth in ``The Baltic
Exchange, Guide to Market Benchmarks'' November 2016, including
production methods, calculation, confidentiality and transparency,
duties of panelists, code of conduct, audits, and quality control.
See id. at 58553 n.7.
    \13\ See id. at 58553.
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    The Fund will seek to achieve its objective by purchasing Freight
Futures.\14\ Freight Futures reflect market expectations for the future
cost of transporting crude oil. The Fund also may hold exchange-traded
options on Freight Futures. The principal markets for Freight Futures
are ICE Futures Europe (``ICE'') and the Chicago Mercantile Exchange
(``CME''). The applicable exchange acts as a counterparty for each
member for clearing purposes. The Fund's investments in Freight Futures
will be cleared by ICE and/or CME.\15\ According

to the Exchange, the liquidity of tanker Freight Futures (clean and
dirty) has been increasing, in lot terms, over the last five years. For
example, in 2021, approximately 560 thousand lots in Freight Futures
traded. As of 2022, open interest in Freight Futures stood at
approximately 145,000 lots across all asset classes representing an
estimated value of more than $2 billion. Major market participants in
the tanker Freight Futures market include commodity producers,
commodity users, commodity trading houses, ship operators, major banks,
investment funds, and independent ship owners.\16\
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    \14\ Generally, Freight Futures trade from approximately 3:00
a.m. Eastern Time (``E.T.'') to approximately 1:00 p.m. E.T. The
great majority of trading volume occurs during London business
hours, from approximately 4:00 a.m. E.T. time to approximately 12:00
p.m. E.T. Some limited trading takes place during Asian business
hours as well (12:00 a.m. to 3:00 a.m. E.T.). The final closing
prices for settlement are published daily around 12:30 p.m. E.T.
Final cash settlement occurs the first business day following the
expiry day. See id. at 58555.
    \15\ See id. CME and ICE are members of the Intermarket
Surveillance Group (``ISG''). See id. at 58553 n.8.
    \16\ See id. at 58556.
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    The Fund's portfolio will be traded with a view to reflecting the
performance of the Benchmark Portfolio, whether the Benchmark Portfolio
is rising, falling, or flat over any particular period.\17\ The
Benchmark Portfolio, which is maintained by Breakwave and will be
rebalanced annually, will hold long positions in Freight Futures
corresponding to the TD3C Index and TD20 Index.\18\ The Benchmark
Portfolio's initial allocation will be approximately 90% TD3C contracts
and 10% TD20 contracts, based on contract value, not number of
lots.\19\ Given each asset's individual price movements during the
year, such percentages might deviate from the targeted allocation. The
Benchmark Portfolio will consist of positions in the three-month strip
of the nearest calendar quarter of Freight Futures and roll them
constantly to the next calendar quarter. The four-calendar quarters are
January, February, and March (Q1), April, May, and June (Q2), July,
August, and September (Q3), and October, November, and December
(Q4).\20\ The Benchmark Portfolio will hold all positions to maturity
and settle them in cash. During any given calendar quarter, the
Benchmark Portfolio will progressively increase its position to the
next calendar quarter three-month strip, thus maintaining constant long
exposure to the Freight Futures market as positions mature. The Fund
maintains the right to invest in other maturities of Freight Futures if
such strategy is deemed necessary. According to the Exchange, the
Benchmark Portfolio will not include, and the Fund will not invest in
swaps, non-cleared freight forwards, or other over-the-counter
derivative instruments that are not cleared through exchanges or
clearing houses.\21\
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    \17\ See id. at 58553.
    \18\ See id. at 58554.
    \19\ See id.
    \20\ See id.
    \21\ See id.
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    To track the Benchmark Portfolio, the Fund will attempt to roll
positions in the nearby calendar quarter, on a pro rata basis.\22\ For
example, if the Fund was currently holding the Q1 calendar quarter
comprising the January, February and March monthly contracts, each week
in the month of February, the Fund will attempt to purchase Q2
contracts in an amount equal to approximately one quarter of the
expiring February positions. As a result, by the end of February, the
Fund would have rolled the February position to Q2 freight contracts,
leaving the Fund with March and Q2 contracts. At the end of March, the
Fund will have completed the roll and will then hold only Q2 exposure
comprising April, May, and June monthly contracts. Since Freight
Futures contracts are cash settled, the Fund need not close out of
existing contracts. Rather, it will hold such contracts to expiration
and apply the above methodology in order acquire the nearby calendar
contract.\23\
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    \22\ See id.
    \23\ See id.
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    To maintain the correlation between the Fund and the change in the
Benchmark Portfolio, the Sponsor may adjust the Fund's portfolio of
investments on a daily basis in response to creation and redemption
orders or otherwise as required. The Sponsor anticipates that the
Fund's Freight Futures positions will be held to expiration and settle
in cash against the respective Reference Index as published by the
Baltic Exchange and ICE or CME.\24\
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    \24\ See id. at 58553.
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    When establishing positions in Freight Futures, the Fund will be
required to deposit initial margin with a value of approximately 10% to
40% of the notional value of each Freight Futures position at the time
it is established.\25\ These margin requirements are established and
subject to change from time to time by the relevant exchanges, clearing
houses, or the Fund's futures commission merchant (``FCM''). On a daily
basis, the Fund will be obligated to pay, or entitled to receive,
variation margin in an amount equal to the change in the daily
settlement level of its overall futures positions. Any assets not
required to be posted as margin with the FCM will be held at the Fund's
custodian in cash or cash equivalents.\26\ The Fund will place purchase
orders for Freight Futures with an execution broker. The broker will
identify a selling counterparty and, simultaneously with the completion
of the transaction, will submit the block traded Freight Futures to the
relevant exchange or clearing house for clearing, thereby completing
and creating a cleared futures transaction. If the exchange or clearing
house does not accept the transaction for any reason, the transaction
will be considered null and void and of no legal effect.\27\
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    \25\ See id.
    \26\ The Fund will hold cash or cash equivalents, such as U.S.
Treasuries or other high credit quality, short-term fixed-income or
similar securities for direct investment or as collateral for the
U.S. Treasuries and for other liquidity purposes, and to meet
redemptions that may be necessary on an ongoing basis. See id. at
58553 n.9.
    \27\ See id. at 58553.
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    The Exchange represents that not more than 10% of the net assets of
the Fund in the aggregate invested in Freight Futures and exchange-
traded options on Freight Futures will consist of Freight Futures and
exchange-traded options on Freight Futures whose principal market is
not a member of the ISG or is a market with which the Exchange does not
have in place a comprehensive surveillance sharing agreement.\28\
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    \28\ See id. at 58553-54.
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II. Proceedings To Determine Whether To Approve or Disapprove SR-
NYSEARCA-2022-61 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Act \29\ to determine whether the proposed rule
change should be approved or disapproved. Institution of proceedings is
appropriate at this time in view of the legal and policy issues raised
by the proposed rule change, as discussed below. Institution of
proceedings does not indicate that the Commission has reached any
conclusions with respect to any of the issues involved. Rather, as
described below, the Commission seeks and encourages interested persons
to provide comments on the proposed rule change.
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    \29\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\30\ the Commission is
providing notice of the grounds for disapproval under consideration.
The Commission is instituting proceedings to allow for additional
analysis of the proposed rule change's consistency with Section 6(b)(5)
of the Act, which requires, among other things, that the rules of a
national securities exchange be ``designed to prevent fraudulent and
manipulative acts and practices'' and

``to protect investors and the public interest.'' \31\
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    \30\ Id.
    \31\ 15 U.S.C. 78f(b)(5).
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    The Commission asks that commenters address the sufficiency of the
Exchange's statements in support of the proposal, which are set forth
in the Notice,\32\ in addition to any other comments they may wish to
submit about the proposed rule change. In particular, the Commission
seeks comment on the following questions and asks commenters to submit
data where appropriate to support their views:
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    \32\ See Notice, supra note 3.
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     The Exchange asserts that the proposed rule change is
designed to prevent fraudulent and manipulative acts and practices
because the Shares will be listed and traded on the Exchange pursuant
to the initial and continued listing criteria in NYSE Arca Rule 8.200-
E.\33\ What are commenters' views on whether the proposed Fund and
Shares would be susceptible to manipulation? What are commenters' views
generally on whether the Exchange's proposal is designed to prevent
fraudulent and manipulative acts and practices?
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    \33\ See Notice, 87 FR at 58558.
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     According to the Exchange, the liquidity of tanker Freight
Futures (clean and dirty) has been increasing, in lot terms, over the
last five years.\34\ What are commenters' views on the Exchange's
assertions regarding the increase in liquidity of Freight Futures and
the data supporting such assertions?
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    \34\ See id. at 58556.
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III. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written
submissions of their views, data, and arguments with respect to the
issues identified above, as well as any other concerns they may have
with the proposal. In particular, the Commission invites the written
views of interested persons concerning whether the proposal is
consistent with Section 6(b)(5) or any other provision of the Act, and
the rules and regulations thereunder. Although there do not appear to
be any issues relevant to approval or disapproval that would be
facilitated by an oral presentation of views, data, and arguments, the
Commission will consider, pursuant to Rule 19b-4, any request for an
opportunity to make an oral presentation.\35\
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    \35\ Section 19(b)(2) of the Act, as amended by the Securities
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the
Commission flexibility to determine what type of proceeding--either
oral or notice and opportunity for written comments--is appropriate
for consideration of a particular proposal by a self-regulatory
organization. See Securities Act Amendments of 1975, Senate Comm. on
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st
Sess. 30 (1975).
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    Interested persons are invited to submit written data, views, and
arguments regarding whether the proposal should be approved or
disapproved by January 4, 2023. Any person who wishes to file a
rebuttal to any other person's submission must file that rebuttal by
January 18, 2023.
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NYSEARCA-2022-61 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEARCA-2022-61. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549 on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEARCA-2022-61 and should be submitted
by January 4, 2023. Rebuttal comments should be submitted by January
18, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\36\
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    \36\ 17 CFR 200.30-3(a)(57).
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Sherry R. Haywood,
Assistant Secretary.
[FR Doc. 2022-27054 Filed 12-13-22; 8:45 am]
BILLING CODE 8011-01-P


			  UNITED STATES OF AMERICA

		        DEPARTMENT OF TRANSPORTATION

			  OFFICE OF THE SECRETARY

			          WASHINGTON, D.C.

Issued by the Department of Transportation on May 11, 2004

NOTICE OF ACTION TAKEN -- DOCKET OST 2004-17573

________________________________________________________________________
________________________________________________________

This serves as notice to the public of the action described below, taken
by the Department official indicated (no additional confirming order
will be issued in this matter).

Applicant:  AERODINAMICA de MONTERREY, S.A. de C.V.
                   Date Filed:  April 14, 2004

Relief requested:  Exemption from 49 USC section 41301 to permit the
applicant to conduct passenger charter operations between Mexico and the
United States, and other passenger charter operations in accordance with
14 CFR Part 212, using small equipment.

Applicant representative:  Rurico Neri, 011-52-81-8369-0614        DOT
analyst:  Allen Brown,<PHONE_NUMBER>

Responsive pleadings:  None.

	DISPOSITION

Action:  Approved
                                               Action date:  May 11,
2004

Effective dates of authority granted:  May 11, 2004, through May 11,
2005

Basis for approval (bilateral agreement/reciprocity):  United
States-Mexico Air Transport Services Agreement of August 15, 1960, as
amended and extended (Agreement).

Except to the extent exempted/waived, this authority is subject to the
terms, conditions, and limitations indicated:

     X  Standard exemption conditions.

Special conditions/Partial grant/Denial basis/Remarks:  In the conduct
of these operations, the carrier must adhere to all applicable
provisions of the U.S.-Mexico Agreement.  In the conduct of these
operations, the carrier may only use aircraft capable of carrying no
more than 60 passengers and having a maximum payload capacity of no more
than 18,000 pounds (small equipment).  The above grant includes
authority to conduct Third and Fourth Freedom charter operations.  While
we have subjected, consistent with the provisions of the Agreement,
Mexican carriers conducting charter operations with large aircraft to
prior approval or submission of notice for their Third and Fourth
Freedom charters, we determined that any such requirement was not
necessary on public interest grounds in this case, since the carrier
will be conducting these operations solely with small aircraft.  (Other
charter operations to/from the United States under this authority,
however, are subject to prior approval under 14 CFR Part 212.)  Further,
we are continuing to allow Mexican carriers conducting passenger
charters using small equipment to make stopovers in the United States in
the conduct of such operations.

Action taken by:   Paul L. Gretch, Director

		      Office of International Aviation

________________________________________________________________________
________________________________________________________

Under authority assigned by the Department in its regulations, 14 CFR
Part 385, we found that (1) our action was consistent with Department
policy; (2) the applicant was qualified to perform its proposed
operations; (3) grant of the authority was consistent with the public
interest; and (4) grant of the authority would not constitute a major
regulatory action under the Energy Policy and Conservation Act of 1975.
To the extent not granted/deferred/dismissed, we denied all requests in
the referenced Docket.  We may amend, modify, or revoke the authority
granted in this Notice at any time without hearing at our discretion.

Persons entitled to petition the Department for review of the action set
forth in this Notice under the Department’s regulations, 14 CFR
§385.30, may file their petitions within seven (7) days after the date
of issuance of this Notice.  This action was effective when taken, and
the filing of a petition for review will not alter such effectiveness.

An electronic version of this document is
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&


[Federal Register Volume 75, Number 248 (Tuesday, December 28, 2010)]
[Rules and Regulations]
[Pages 81422-81424]
[FR Doc No: 2010-31967]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-0127; Directorate Identifier 2009-NM-242-AD;
Amendment 39-16547; AD 2010-26-08]
RIN 2120-AA64

Airworthiness Directives; The Boeing Company Model 767 Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: We are adopting a new airworthiness directive (AD) for the
products listed above. This AD requires a detailed inspection of the
entryway door movable ceiling panel for pin migration at either end of
the hinge assembly and damage to the pin; a detailed inspection for
correct crimp at both ends and damage to hinge stock; a detailed
inspection of the ceiling area for any visible cosmetic and/or tie-rod
chafing that could be caused by a migrated hinge pin; a detailed
inspection for wire damage and/or breakage; and other specified and
corrective actions if necessary. This AD results from reports of fault
messages caused by improperly crimped hinge pins coming into contact
with wires and causing damage. We are issuing this AD to detect and
correct improperly crimped hinge pins, which could damage tie rods and
wire bundles, causing shorts in many systems, including the spar fuel
shut-off valve, oxygen mask deployment, and burned wires, which could
be an ignition source in a hidden area of the airplane.

DATES: This AD is effective February 1, 2011.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in the AD as of February 1,
2011.

ADDRESSES: For service information identified in this AD, contact
Boeing Commercial Airplanes, Attention: Data & Services Management,
P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-
544-5000, extension 1; fax<PHONE_NUMBER>; e-mail<EMAIL_ADDRESS>
Internet https://www.myboeingfleet.com. You may review copies of the
referenced service information at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington. For information
on the availability of this material at the FAA, call<PHONE_NUMBER>.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The AD docket contains this AD, the regulatory evaluation,
any comments received, and other information. The address for the
Docket Office (phone:<PHONE_NUMBER>) is Document Management Facility,
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Stephen Styskal, Cabin Safety and
Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft
Certification Office (ACO), 1601 Lind Avenue, SW., Renton, Washington
98057-3356; telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 to include an airworthiness directive (AD) that would apply to
the specified products. That NPRM was published in the Federal Register
on February 22, 2010 (75 FR 7557). That NPRM proposed to require a
detailed inspection of the entryway door movable ceiling panel for pin
migration at either end of the hinge assembly and damage to the pin; a
detailed inspection for correct crimp at both ends and damage to hinge
stock; a detailed inspection of the ceiling area for any visible
cosmetic and/or tie-rod chafing that could be caused by a migrated
hinge pin; a detailed inspection for wire damage and/or breakage; and
other specified and corrective actions if necessary.

Comments

    We gave the public the opportunity to participate in developing
this AD. The following presents the comments received on the proposal
and the FAA's response to each comment.

Support for the NPRM

    Air Line Pilots Association, International (ALPA) and UPS support
the intent of the NPRM.

Request To Clarify the Compliance Requirements in Paragraph (g) of the
NPRM

    Boeing requested that we clarify the compliance requirements and
associated compliance times in paragraph (g) of the NPRM. Boeing stated
that the phrase ``all applicable other specified and corrective
actions'' is stated twice, and as a result, the requirements are
interpretive and misleading. Boeing pointed out that the proposed
requirement to do these actions before further flight is misleading.
    We agree to clarify. Other specified actions include re-partmarking
the moveable panel ceiling and the hinge assemblies, if necessary.
Corrective actions include crimping the hinge assembly, repairing tie-
rod chafing, repairing wire damage, and replacing the hinge assembly.
The phrase is stated twice, and each phrase has a different purpose.
The first purpose is to state that the actions must be done in
accordance with Boeing Service Bulletin 767-25-0477, dated August 27,
2009. The second purpose is to state that the other specified and
corrective actions must be done before further flight if any pin
migration, improper crimping, tie-rod damage or wire damage was found.
We have revised paragraph (g) of this AD to clarify the intent.

Request To Revise the Unsafe Condition

    Boeing asked that we revise the second sentence of paragraph (e) to
state that ``The FAA is issuing this AD to detect and correct
improperly crimped hinge pins, which could damage tie rods and wire
bundles, causing shorts in many systems.'' Boeing stated that it has
determined the probability of an airplane-level hazard to be extremely
remote, and disagrees with the references to the spar shut-off valve,
oxygen masks, and flammability-related concerns.
    We disagree with the request to revise the unsafe condition because
the unsafe condition description as written accurately reflects valid
safety concerns.
    Regarding the spar fuel shut-off valve, although the wiring is
redundant, a short to ground will cause the valve circuit breaker to
trip, resulting in the valve remaining in the last commanded position.
If the valve fails in the open position, it may not be possible to
isolate fuel flow from the tanks to the engine during an engine fire.
This would be a latent failure of a required system function. While the
engine fuel valve may still be available to the flight crew to stop
fuel flow to the engine in an emergency, unavailability of the spar
fuel shut-off valve eliminates the required isolation capability of the
fuel system upstream of the engine.
    In regard to the airplane's oxygen system, while failure of the
oxygen mask deployment system does not pose a significant airplane-
level hazard, unavailability of the oxygen system

could consequently result in exposing the passengers and cabin
attendants to hypoxia following a depressurization event.
    In regard to the flammability-related concerns, while self-
extinguishing and fire-resistant materials are used throughout the
airplane, burned wires have resulted from migrated hinge pins and are a
potential ignition source in a hidden area.
    We have not changed the AD in regard to these issues.

Request To Clarify Requirements for Alternative Method of Compliance
(AMOC)

    Continental Airlines (CAL) stated that it has addressed the safety
issue in accordance with Boeing Service Request 1-132547518, dated
October 18, 2005, and requested clarification on the possibility of
receiving approval of an alternative method of compliance (AMOC) based
on its findings and corrective actions.
    We agree to clarify the requirements to receive approval of an
AMOC. Under the provisions of paragraph (h) of this AD, we will
consider approving any alternative method of compliance if the proposal
provides an acceptable level of safety. However, additional
substantiation may be required for an AMOC approval based on existing
service information and as such, applicants will need to request an
AMOC approval in accordance with paragraph (h) of this AD. We have not
changed the AD in regard to this issue.

Request To Clarify Inspection Requirements for Wire Bundles

    UPS requested that Boeing Service Bulletin 767-25-0477, dated
August 27, 2009, be revised to clarify and provide better detail
regarding which wire bundles to inspect for damage. UPS stated that
this service bulletin does not provide enough detail to properly
identify the wire bundles that need to be inspected if a hinge pin is
found to have migrated. UPS stated that the ``approximate location of
damage wire bundles'' as stated in Boeing Service Bulletin 767-25-0477,
dated August 27, 2009, could allow maintenance personnel to miss
damaged wire bundles since it does not specify the location or the wire
bundle numbers.
    In response to the request from UPS to provide additional detail
about wire bundle locations, Boeing Service Bulletin 767-25-0477, dated
August 27, 2009, indicates that damaged wire bundles should be located
in the vicinity of the migrated pin. The detailed inspections required
by this AD cover multiple areas, and we cannot predict which wire
bundles may be damaged. Boeing Service Bulletin 767-25-0477, dated
August 27, 2009, provides an adequate level of detail to perform the
required inspections. Boeing might revise Boeing Service Bulletin 767-
25-0477, dated August 27, 2009, in the future, and we might consider
additional rulemaking at that time. We have not changed the AD in
regard to this issue.

Request To Remove Model 767-300F Airplanes From the Applicability of
the NPRM

    UPS requested that we remove Model 767-300F airplanes from the
applicability of the NPRM. UPS stated that the wire bundles that are
subject to the inspections specified in Boeing Service Bulletin 767-25-
0477, dated August 27, 2009, for Model 767-300F airplanes only consist
of wiring for the crew entry door dome light, and does not consist of
wiring for the other systems that are called out by the NPRM. UPS
stated that it believed that Boeing supports this statement. UPS stated
that it has not experienced any dome light system shorts or burned
wires in this area.
    We disagree with the request. While the wire bundle that is in
close proximity to the ceiling panel hinge pin may indeed contain
wiring for the crew entry door dome light, it is possible that
additional wiring for other systems is also susceptible to damage from
a migrating hinge pin. The wiring that could be affected by a migrating
ceiling panel hinge pin on the Model 767-300F includes wiring for the
same systems that could be affected by a migrating hinge pin on Model
767-200, -300, and -400ER airplanes. In addition, although UPS has not
encountered wire chafing due to a migrating hinge pin, hinge pins have
migrated on other airplanes, and wiring damage has resulted. We have
not changed the AD in regard to this issue.

Conclusion

    We reviewed the relevant data, considered the comments received,
and determined that air safety and the public interest require adopting
the AD with the change described previously.

Costs of Compliance

    We estimate that this AD affects 273 airplanes of U.S. registry.
    We estimate the following costs to comply with this AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost on U.S.
             Action                    Labor cost            Parts cost      Cost per product      operators
----------------------------------------------------------------------------------------------------------------
Inspections....................  6 work-hours x $85 per              $770             $1,280           $349,440
                                  hour = $510.
----------------------------------------------------------------------------------------------------------------

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    We are issuing this rulemaking under the authority described in
subtitle VII, part A, subpart III, section 44701: ``General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    This AD will not have federalism implications under Executive Order
13132. This AD will not have a substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979),
    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

0
Accordingly, under the authority delegated to me by the Administrator,
the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

2010-26-08 The Boeing Company: Amendment 39-16547; Docket No. FAA-
2010-0127; Directorate Identifier 2009-NM-242-AD.

Effective Date

    (a) This AD is effective February 1, 2011.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to The Boeing Company Model 767-200, -300, -
300F, and -400ER series airplanes, certificated in any category; as
identified in Boeing Service Bulletin 767-25-0477, dated August 27,
2009.

Subject

    (d) Air Transport Association (ATA) of America Code 25:
Equipment/Furnishings.

Unsafe Condition

    (e) This AD results from reports of fault messages caused by an
improperly crimped hinge pins on the movable ceiling panel of the
entryway door on the forward left side coming into contact with
wires and causing damage. The Federal Aviation Administration is
issuing this AD to detect and correct improperly crimped hinge pins,
which could damage tie rods and wire bundles, causing shorts in many
systems, including the spar fuel shut-off valve, oxygen mask
deployment, and burned wires, which could be an ignition source in a
hidden area of the airplane.

Compliance

    (f) You are responsible for having the actions required by this
AD performed within the compliance times specified, unless the
actions have already been done.

Inspections and Corrective Actions

    (g) Within 72 months after the effective date of this AD:
Accomplish the inspections required by paragraphs (g)(1), (g)(2),
(g)(3), and (g)(4) of this AD, and do all applicable corrective
actions and part marking, in accordance with the Accomplishment
Instructions of Boeing Service Bulletin 767-25-0477, dated August
27, 2009. If, during the following inspections, any pin migration,
improper crimping, tie-rod damage, or wire damage is found, do all
applicable corrective actions, in accordance with Boeing Service
Bulletin 767-25-0477, dated August 27, 2009, before further flight.
    (1) A detailed inspection for pin migration at either end of the
hinge assembly and to detect damage to the pin.
    (2) A detailed inspection for correct crimp at both ends and to
detect damage to hinge stock.
    (3) A detailed inspection of the ceiling area for any visible
cosmetic and tie-rod chafing that could be caused by a migrated
hinge pin.
    (4) A detailed inspection for wire damage and breakage.

Alternative Methods of Compliance (AMOCs)

    (h)(1) The Manager, Seattle Aircraft Certification Office, FAA,
has the authority to approve AMOCs for this AD, if requested using
the procedures found in 14 CFR 39.19. Send information to ATTN:
Stephen Styskal, Aerospace Engineer, Cabin Safety and Environmental
Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office
(ACO), 1601 Lind Avenue, SW., Renton, Washington 98057-3356;
telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>. Or, e-mail information
to<EMAIL_ADDRESS>    (2) To request a different method of compliance or a different
compliance time for this AD, follow the procedures in 14 CFR 39.19.
Before using any approved AMOC on any airplane to which the AMOC
applies, notify your principal maintenance inspector (PMI) or
principal avionics inspector (PAI), as appropriate, or lacking a
principal inspector, your local Flight Standards District Office.
The AMOC approval letter must specifically reference this AD.

Related Information

    (i) For more information about this AD, contact Stephen Styskal,
Aerospace Engineer, Cabin Safety and Environmental Systems Branch,
ANM-150S, FAA, Seattle Aircraft Certification Office (ACO), 1601
Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425)
917-6439; fax<PHONE_NUMBER>.

Material Incorporated by Reference

    (j) You must use Boeing Service Bulletin 767-25-0477, dated
August 27, 2009, to do the actions required by this AD, unless the
AD specifies otherwise.
    (1) The Director of the Federal Register approved the
incorporation by reference of this service information under 5
U.S.C. 552(a) and 1 CFR part 51.
    (2) For service information identified in this AD, contact
Boeing Commercial Airplanes, Attention: Data & Services Management,
P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone
206-544-5000, extension 1; fax<PHONE_NUMBER>; e-mail
<EMAIL_ADDRESS>Internet https://www.myboeingfleet.com.
    (3) You may review copies of the service information at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington. For information on the availability of this material at
the FAA, call<PHONE_NUMBER>.
    (4) You may also review copies of the service information that
is incorporated by reference at the National Archives and Records
Administration (NARA). For information on the availability of this
material at an NARA facility, call<PHONE_NUMBER>, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Issued in Renton, Washington on December 13, 2010.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2010-31967 Filed 12-27-10; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 76, Number 115 (Wednesday, June 15, 2011)]
[Rules and Regulations]
[Pages 34848-34852]
[FR Doc No: 2011-14824]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2010-0879]
RIN 1625-AA09

Drawbridge Operation Regulation; Atlantic Intracoastal Waterway
(AIWW), Elizabeth River, Southern Branch, Chesapeake, VA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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

SUMMARY: The Coast Guard is temporarily changing the drawbridge
operation regulations of the Gilmerton (US13/460) Bridge across the
Elizabeth River (Southern Branch), AIWW mile 5.8, at Chesapeake, VA.
Due to the construction of the new Gilmerton Highway Bridge, the
existing drawbridge has experienced increased delays to vehicular
traffic during unscheduled vessel openings. This change will allow
adjustments and set opening periods for the bridge during the day until
December 20, 2013, relieving vehicular traffic congestion during the
weekday and weekend daytime hours while still providing for the
reasonable needs of navigation.

DATES: This rule is effective from 9 a.m. on June 19, 2010 until 6:30
p.m. on December 20, 2013.

ADDRESSES: Comments and related materials received from the public, as
well as documents mentioned in this preamble as being available in the
docket, are part of docket USCG-2010-0879 and are available online by
going to http://www.regulations.gov, inserting USCG-2010-0879 in the
``Keyword'' box, and clicking ``Search.'' This material is also
available for inspection or copying at the 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,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call Waverly W. Gregory, Jr., Bridge Program Manager, Fifth Coast Guard
District, at<PHONE_NUMBER>. If you have questions on viewing the docket,
call Renee V. Wright, Program Manager, Docket Operations, telephone
202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    On November 16, 2010, we published a notice of temporary deviation
request for comments entitled ``Drawbridge Operation Regulation;
Atlantic Intracoastal Waterway (AIWW), Elizabeth River, Southern
Branch, VA'' in the Federal Register (75 FR 69879) and a notice of
proposed rulemaking (NPRM) entitled ``Drawbridge Operation Regulation;
Atlantic Intracoastal Waterway (AIWW), Elizabeth River, Southern
Branch, VA'' in the Federal Register (75 FR 69906). We received seven
comments on the published deviation and NPRM. No public meeting was
requested, and none was held.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective in less than 30 days after
publication in the Federal Register. Making this rule effective in less
than 30 days is necessary in order to continue the construction of the
new Gilmerton Bridge Replacement Project without disruption.
Additionally, delaying this final temporary could result in additional
vehicular traffic congestion without providing any additional benefit
to vessel traffic.

Background and Purpose

    The City of Chesapeake, Virginia (the City), who owns and operates
the lift-type Gilmerton (US13/460) Bridge, has requested a temporary
change to the existing bridge regulations. The current regulation, set
out in Title 33 CFR Part

117.997(c), requires the Gilmerton (US13/460) Bridge, at AIWW mile 5.8,
in Chesapeake to open on signal at anytime for commercial vessels
carrying liquefied flammable gas or other hazardous materials. From
6:30 a.m. to 8:30 a.m. and from 3:30 p.m. to 5:30 p.m. Monday through
Friday, except Federal holidays, the draw need not open for the passage
of recreational or commercial vessels; except the draw shall open for
commercial cargo vessels, including tugs, and tugs with tows, if two
hours advance notice is given to the Gilmerton Bridge at (757) 545-
1512. At all other times, the draw shall open on signal. The current
operating schedule has been in effect since November 17, 2003.
    The Gilmerton Bridge Replacement project, which is currently
underway since November 2009, will provide a new vertical-lift type
bridge over the Southern Branch of the Elizabeth River to replace the
existing bridge that was constructed in 1938.
    Due to the construction for the new Gilmerton Bridge, vehicular
traffic is limited to one lane in each direction and the bridge and
approaches have experienced back-ups, delays, and congestion. This
temporary change will continue to allow, from June 19, 2011, to
December 20, 2013, the draw of the Gilmerton (US13/460) Bridge to open
on signal at anytime for commercial vessels carrying liquefied
flammable gas or other hazardous materials, and at anytime for
commercial cargo vessels, including tugs, and tugs with tows, if two
hours advance notice is given to the Gilmerton Bridge at (757) 545-
1512, but will extend by one-hour; from 6:30 a.m. to 9:30 a.m. and from
3:30 p.m. to 6:30 p.m., Monday through Friday, except Federal holidays;
the time each day when the draw need not open for the passage of
recreational or commercial vessels.
    From 9:30 a.m. to 3:30 p.m. Monday through Friday and from 6:30
a.m. to 6:30 p.m. Saturdays, Sundays and Federal holidays, the draw
shall open on signal hourly on the half hour; except the draw shall
open anytime for commercial cargo vessels, including tugs, and tugs
with tows, if two hours advance notice is given to the Gilmerton Bridge
at<PHONE_NUMBER>. At all other times, the draw shall open on signal.
By expanding the morning and evening rush hour periods on the weekdays
and implementing scheduled bridge openings between the rush hour
periods and on the weekends, we anticipated a decrease in vehicular
traffic congestion during the daytime hours.
    Concurrent with the publication of the Notice of Proposed
Rulemaking (NPRM), a Test Deviation [USCG-2010-0879] was issued to
allow the City to test the proposed schedule and to obtain data and
public comments. The test deviation was in effect during the entire
Notice of Proposed Rulemaking comment period. Also, a count of the
delayed vessels during the closure periods was taken to ensure a future
regulation would not have a significant impact on navigation. The NPRM
was coordinated with the main commercial waterway user group,
specifically, the Virginia Maritime Association who represents
waterborne commerce in the Port of Hampton Roads, and there was no
expectation of any significant impacts on navigation.
    Vessel traffic on this waterway consists of pleasure craft, tug and
barge traffic, and ships with assist tugs. There are no alternate
routes for vessels transiting this section of the Atlantic Intracoastal
Waterway and the drawbridge will be able to open in the event of an
emergency.
    According to records furnished by the City, there were a total of
6,195 bridge openings and 12,498 vessel passages occurring at the
drawbridge between September 2009 and September 2010. (See Table A)

                                                                         Table A
--------------------------------------------------------------------------------------------------------------------------------------------------------
   2009        2009        2009        2009        2010        2010        2010        2010        2010        2010        2010        2010       2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
    SEP         OCT         NOV         DEC         JAN         FEB         MAR         APR         MAY         JUN         JUL        AUG        SEP
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    BRIDGE OPENINGS FOR SEPTEMBER 2009-SEPTEMBER 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
     551         621         549         503         299         284         317         476         639         616         459         365        516
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     BOAT PASSAGES FOR SEPTEMBER 2009-SEPTEMBER 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
     892        1858        1361         645         406         392         478         967        1770        1408         791         628        902
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Under normal conditions, the Gilmerton (US13/460) Bridge is a vital
transportation route for over 35,000 motorists per day. According to
recent vehicular traffic counts submitted by the City, the average
daily traffic volume decreased at the Gilmerton (US13/460) Bridge to
approximately 20,000 cars a day. Due to construction, the I-64 High
Rise Bridge is the suggested alternate route for motorists. Even with
the alternative vehicular route, the Coast Guard anticipates continued
vehicular traffic congestion over the Gilmerton Highway Bridge due to
the reduction of highway lanes and anticipates that traffic congestion
will subside once the new bridge is completed.

Discussion of Comments and Changes

    The Coast Guard received seven responses to the NPRM including two
comments from the same respondent. Six comments were submitted online
to http://www.regulations.gov, with one remark forwarded by e-mail.
    The respondents, all mariners, expressed the following remarks and
recommendations:
    The first comment recommended operating procedures for inclusion in
the regulatory language. The suggestions offered are the following:
    1. If any vessel is approaching the bridge and cannot reach the
draw exactly on the half hour, the draw tender may delay the opening up
to 10 minutes past the half hour for passage of the approaching vessel
and any other vessels that are waiting to pass.
    The Coast Guard considered the proposal reasonable and will add the
suggestion to the final rule.
    2. If Norfolk & Southern Railroad Bridge #7 adjacent to Gilmerton
Bridge is closed at the time of a scheduled opening AND a vessel(s) is
waiting that requires opening of the Gilmerton Bridge, the Gilmerton
Bridge shall open as soon as Railroad Bridge #7 opens, to allow passage
of the vessel(s) waiting from the scheduled opening time. Any other
vessels that may have accumulated can pass through with the original
vessel(s) that was delayed.
    For these situations, the Coast Guard will make the following
changes: If the Norfolk & Southern Railroad Bridge 7,

at mile 5.8, is not opened during a particular scheduled opening for
the Gilmerton Bridge and vessels were delayed, the draw tender at the
Gilmerton Bridge may provide a single opening for waiting vessels once
the Norfolk & Southern Railroad Bridge 7 reopens for vessels.
    The second and third comments were opposed to the temporary
regulations and suggested that the drawbridge opening restrictions
during the weekday (between 6:30 a.m. to 9:30 a.m.) include one opening
for vessels at 8:30 a.m. in order to coincide with the operation of the
Dominion Boulevard (US 17) Bridge located across the Southern Branch of
the Elizabeth River at AIWW mile 8.8 in Chesapeake VA. Both mariners
stated in some measure that: In this way, Belhaven NC, which is
approximately 135 miles from Norfolk VA, can be reached. Transiting
through at 9:30 a.m. adds an extra day to the trip.
    The Coast Guard does not believe that this request is reasonable
since purpose of the test deviation and temporary regulations is to
help reduce vehicle traffic congestion on the bridge during daytime
hours, while providing for the reasonable needs of navigation during
the construction of the new Gilmerton Bridge Replacement Project. The
addition of a bridge opening at 8:30 would significantly disrupt
vehicular traffic during ``rush hour'' without a corresponding benefit
to vessel traffic. Further this is only a temporary change and once the
new bridge is completed, the existing operating regulations, set out 33
CFR 117.997(c), will be reinstated.
    The fourth comment disagreed with making the proposed bridge
opening schedules permanent at this time and requested waiting to see
how the traffic flows after the construction is completed. The fifth
comment suggested that ``We change the operation of the Dominion
Boulevard (US 17) Bridge to open for vessels on the half-hour instead
of on the hour and change the operation of the Gilmerton Bridge to open
for vessels on the hour, because the Great Bridge locks and the
Dominion Boulevard Bridge both open on the hour costing vessel traffic
an extra hour. Even sailboats could make both bridges and the locks on
the suggested schedule, saving congestion and fuel''.
    For these comments, the Coast Guard responds by stating that this
change is only temporary and will allow adjustments and set opening
periods for the bridge to vessels during the day to continue from June
19, 2011 until December 20, 2013. At 6:30 p.m. on December 20, 2013,
the temporary regulations will end and the existing operating
regulations will be reinstated.
    The sixth and seventh comments were submitted by the same
respondent. This commenter is opposed to the temporary regulations, the
delayed operation of the adjacent Norfolk & Southern Railway Bridge,
and the ineffective operating staff at the Gilmerton Bridge.
    For these comments, the Coast Guard again responds by stating that
this change is only temporary and will allow adjustments and set
opening periods for the bridge to vessels during the day to continue
from June 19, 2011 until December 20, 2013. At 6:30 p.m. on December
20, 2013, the temporary regulations will end and the existing operating
regulations, set out 33 CFR 117.997(c), will be reinstated.
    In addition, there are general penalty procedures to facilitate the
safe passage of vessels through bridges by deterring any inconvenience
or impediment to navigation which may result from the ineffective
operation of bridges across navigable waters of the United States.
Complainants should forward a report of alleged violations to the
district Bridge Program Manager who conducts an investigation to
determine if there is sufficient evidence to establish a ``prima
facie'' case. If the material then available indicates that there is
not a prima facie case, yet a violation appears imminent, the district
Bridge Program Manager may issue a cautionary notice by letter or
telephone. If it is determined that a prima facie case does exist, a
case file is prepared and forwarded to the Hearing Officer, with a
recommended action.
    The Coast Guard reviewed the bridge data supplied by the Virginia
Department of Transportation (VDOT). The City gathered data during the
month of April 2011 to analyze the effect of the temporary deviation on
roadway and maritime traffic. According to the City, April was chosen
as it falls during the ``snowbird season'', when maritime traffic is at
its peak. The test regulations had been in effect for three months,
providing roadway and maritime traffic time to adjust to the new test
regulations. The data was compared to data from April 2010. In summary,
the data showed that in April 2011 the bridge made on average 0.7 fewer
bridge lifts per day during morning rush hour restrictions (6:30 a.m.
to 9:30 a.m.), 1.3 fewer lifts per day during the 9:30 a.m. to 3:30
p.m. timeframe, and 1.7 fewer lifts during the evening rush hour
restrictions (3:30 p.m. to 6:30 p.m.).
    Vehicular traffic count information, from the VDOT count station on
Military Highway near Shell Road, showed an average daily traffic count
of 24,717 vehicles crossing the structure during the weekdays in April
2011. This is an increase of approximately 4,700 vehicles per day
crossing the bridge since the test regulations went into effect. In
conclusion, the test regulation appears to be reducing the number of
bridge openings during the weekdays, allowing more vehicles to cross
the bridge, and therefore helping to reduce vehicular traffic
congestion in the area. The test regulation also appears to be having a
minimal impact on maritime traffic. The City would like to continue to
institute this temporary regulation until construction on the new
Gilmerton Bridge is completed sometime in 2013.
    Based on the information provided, we will implement a final rule
with minimal changes to the NPRM.

Regulatory Analyses

    We developed this 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 Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that Executive Order 12866
or under section 1 of Executive Order 13563. The Office of Management
and Budget has not reviewed it under those Orders.
    We reached this conclusion based on the fact that the changes are
expected to 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 will
not have a significant economic impact on a substantial number of small
entities.

This rule will affect the following entities, some of which might be
small entities: Owners and operators of vessels other than certain
commercial cargo vessels needing to transit the bridge. This rule will
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, by expanding the morning and evening rush hour
periods by one hour on the weekdays and implementing scheduled bridge
openings between the rush hour periods on weekdays and on the weekends.
Mariners who plan their transits in accordance with the scheduled
bridge openings can minimize delay.
    We received comments about delay issues and have determined that a
10-minute delay of the opening for vessels that are unable to make the
half-hour opening is reasonable. In addition, for those vessels whose
transit is delayed due to an opening of the Norfolk & Southern Railroad
Bridge 7, the Gilmerton (US13/460) Bridge drawtender may
provide a single opening after the Norfolk & Southern Railroad Bridge
7 reopens such that those vessels may continue their transit
without further delay.
    Though two comments were received regarding vessel transit time to
Belhaven, NC: (i) This change is only temporary; (ii) this change only
adds one hour in the morning and one hour in the evening when the draw
need not open for recreational and some commercial vessels; (iii)
mariners may pre-plan their trips in accordance with this regulation;
(iv) this regulation has been tested for approximately the past three
months, thereby providing additional notice to mariners and providing a
time-period for them to acquaint themselves with any necessary
scheduling alterations for their planned trips; and (v) this change is
meant to assist with better facilitating rush hour vehicular traffic
for the approximately 20,000 vehicles transiting the bridge while not
unreasonably interfering with maritime transiting.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 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). 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 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 (adjusted for
inflation) 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 Department of Homeland Security
Management Directive 023-01 and 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 this action is one of a category of actions which
do not individually or cumulatively have a significant effect on the
human environment. This rule is categorically excluded, under figure 2-
1, paragraph (32)(e) of the Instruction as this rule is related to the
promulgation of operating regulations or procedures for drawbridges.
    Under figure 2-1, paragraph (32)(e), of the Instruction, an
environmental analysis checklist and a categorical exclusion
determination are not required for this rule.

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

0
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.

0
2. From June 19, 2011, to December 20, 2013, in Sec.  117.997, suspend
paragraph (c) and temporarily add a new paragraph (j) to read as
follows:

Sec.  117.997  Atlantic Intracoastal Waterway, South Branch of the
Elizabeth River to the Albemarle and Chesapeake Canal.

* * * * *
    (j) The draw of the Gilmerton (US13/460) Bridge, mile 5.8, in
Chesapeake:
    (1) Shall open on signal at any time for commercial vessels
carrying liquefied flammable gas or other hazardous materials.
    (2) From 6:30 a.m. to 9:30 a.m. and from 3:30 p.m. to 6:30 p.m.,
Monday through Friday, except Federal holidays:
    (i) Need not open for the passage of recreational or commercial
vessels that do not qualify under paragraph (j)(2)(ii) of this section.
    (ii) Need not open for commercial cargo vessels, including tugs,
and tugs with tows, unless 2 hours advance notice has been given to the
Gilmerton Bridge at<PHONE_NUMBER>.
    (3) From 9:30 a.m. to 3:30 p.m. Monday through Friday and from 6:30
a.m. to 6:30 p.m. Saturdays, Sundays and Federal holidays, the draw
need only be opened every hour on the half hour, except the draw shall
open on signal for commercial vessels that qualify under paragraphs
(j)(1) and (j)(2)(ii) of this section.
    (4) If any vessel is approaching the bridge and cannot reach the
draw exactly on the half hour per paragraph (j)(3) of this section, the
draw tender may delay the opening up to 10 minutes past the half hour
for passage of the approaching vessel and any other vessels that are
waiting to pass.
    (5) If the Norfolk & Southern Railroad Bridge 7, at mile
5.8, is not opened during a particular scheduled opening for the
Gilmerton Bridge and vessels were delayed, the draw tender at the
Gilmerton Bridge may provide a single opening for waiting vessels, once
the Norfolk & Southern Railroad Bridge 7 reopens for vessels.
    (6) Shall open on signal at all other times.

    Dated: June 2, 2011.
William D. Lee,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2011-14824 Filed 6-14-11; 8:45 am]
BILLING CODE 9110-04-P