[Federal Register Volume 70, Number 109 (Wednesday, June 8, 2005)]
[Proposed Rules]
[Pages 33405-33408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11397]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-05-049]
RIN 1625-AA09


Drawbridge Operation Regulations; Elizabeth River, Eastern 
Branch, VA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to change the regulations that govern 
the operation of the Berkley Bridge across the Eastern Branch of the 
Elizabeth River, mile 0.4, in Norfolk, Virginia. The proposal would 
extend the morning and evening rush hour closure periods so that the 
morning rush hour period starts at 5 a.m. and ends at 9 a.m., and the 
evening rush hour starts at 3 p.m. and

[[Page 33406]]

ends at 7 p.m., Monday through Friday, except Federal holidays. The 
proposed change would relieve vehicular traffic congestion during the 
weekday rush hours while still providing for the reasonable needs of 
navigation.

DATES: Comments and related material must reach the Coast Guard on or 
before July 25, 2005.

ADDRESSES: You may mail comments and related material to Commander 
(obr), Fifth Coast Guard District, Federal Building, 1st Floor, 431 
Crawford Street, Portsmouth, VA 23704-5004. The Fifth Coast Guard 
District maintains the public docket for this rulemaking. Comments and 
material received from the public, as well as documents indicated in 
this preamble as being available in the docket, will become part of 
this docket and will be available for inspection or copying at 
Commander (obr), Fifth Coast Guard District between 8 a.m. and 4 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Gary Heyer, Bridge Management 
Specialist, Fifth Coast Guard District, at (757) 398-6629.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking CGD05-05-
049, indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like a return 
receipt, please enclose a stamped, self-addressed postcard or envelope. 
We will consider all submittals received during the comment period. We 
may change this proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Commander (obr), Fifth Coast Guard 
District at the address under ADDRESSES explaining why one would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the Federal 
Register.

Background and Purpose

    On behalf of the City of Norfolk, the Virginia Department of 
Transportation (VDOT) who owns and operates this lift-type bridge, 
requested a change to the existing regulations for the Berkley Bridge. 
The current regulation allows the Berkley Bridge, at mile 0.4 in 
Norfolk, to remain closed one hour prior to the published start of a 
scheduled marine event regulated under Sec. 100.501, and remain closed 
until one hour following the completion of the event unless the Patrol 
Commander designated under Sec. 100.501 allows the bridge to open for 
commercial vessel traffic. In addition, the bridge shall open on signal 
any time except from 5:30 a.m. to 9 a.m. and from 3:30 p.m. to 6:30 
p.m., Monday through Friday, except Federal holidays, and shall open at 
any time for vessels with a draft of 22 feet or more, provided that at 
least 12 hours advance notice has been given to the Berkley Bridge 
Traffic Control Room and shall open on signal at any time for a vessel 
in distress.
    The purpose of this proposal is to help alleviate the current 
highway traffic congestion which has increased. The Berkley Bridge is a 
principle arterial route that serves as the major evacuation highway in 
the event of emergencies. Weekday vehicular traffic counts submitted by 
VDOT revealed that in 2002 and 2003, the Berkley Bridge has experienced 
a six percent (or 78,898 car) increase in traffic flow during the 
morning and evening rush hours.
    Also, on September 18, 2003, the Hampton Roads area experienced 
severe damage as a result of Hurricane Isabel. Due to a heavy storm 
surge along the entire coastal area, the Portsmouth Midtown Tunnel was 
flooded. While the tunnel was undergoing an evaluation and repairs, a 
significant amount of vehicular traffic that used the tunnel on a daily 
basis was shifted onto the Berkley Bridge. In its attempt to manage 
this increase in road traffic and associated safety concerns, VDOT 
requested an immediate expansion of the current authorized rush hour 
closure periods of the Berkley Bridge. The Coast Guard responded by 
issuing a temporary final rule, until the repairs were completed that 
extended the morning and evening closure periods and suspended the 
provision allowing openings for deep-draft commercial vessels. The 
temporary final rulemaking implemented for the Berkley Bridge to stay 
open a little longer in the morning and evening was successful in 
easing the commute for thousands of motorists.
    As a result of the temporary adjustments to the morning and evening 
rush hour closure periods caused by Hurricane Isabel, the current 
proposal was offered to help alleviate the growing vehicular traffic 
congestion and to increase public safety, while still balancing the 
needs of marine and vehicular traffic.

Discussion of Proposed Rule

    The Coast Guard proposes to amend the regulations governing the 
Berkley Bridge, mile 0.4, at Norfolk, VA, at 33 CFR 117.1007, by 
revising paragraphs (c)(1) and (2) thereby, expanding the time periods 
in which the drawbridge may remain closed to vessels to be 5 a.m. to 9 
a.m. and 3 p.m. to 7 p.m.
    The proposal would change the telephone number to the Berkley 
Bridge Traffic Control Room from ``(804) 494-2424'' to ``(757) 494-
2490''. The telephone number change would accurately reflect the new 
telephone number to this Bridge.
    Also, the surplus language currently stated in 33 CFR 
117.1007(c)(4) would be removed to be consistent with the general 
operating regulations at 33 CFR 117.31. The provision delineated at 33 
CFR 117.31(b)(2) already requires that the draw shall open as soon as 
possible for vessels in distress and is no longer required to be 
published in each specific bridge regulation. Text modifications would 
be consistent with the proposed changes to be made in these paragraphs, 
as appropriate.

Regulatory Evaluation

    This proposed rule is not a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, Regulatory Planning and Review, 
and does not require an assessment of potential costs and benefits 
under section 6(a)(3) of that Order. The Office of Management and 
Budget has not reviewed it under that Order. It is not ``significant'' 
under the regulatory policies and procedures of the Department of 
Homeland Security (DHS).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary. We reached this conclusion based 
on the fact that the proposed changes have only a minimal impact on 
maritime traffic transiting the bridge. Mariners 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 proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently

[[Page 33407]]

owned and operated and are not dominant in their fields, and 
governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    This proposed rule 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.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact Waverly W. Gregory, Jr., Bridge 
Administrator, Fifth Coast Guard District, (757) 398-6222. The Coast 
Guard will not retaliate against small entities that question or 
complain about this rule or any policy or action of the Coast Guard.

Collection of Information

    This proposed rule would call for no new collection of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this proposed rule 
under that Order and have determined that it does not have implications 
for federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this proposed rule will not result in such an 
expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

Taking of Private Property

    This proposed rule would not 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 proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian tribal 
governments, because it would not have a substantial direct effect on 
one or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed rule under Commandant Instruction 
M16475.lD, 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 proposed 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.

Regulations

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 117.1007 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. Remove paragraphs Sec. 117.1007(c)(3) and (c)(4) and revise 
paragraphs (c)(1) and (c)(2) to read as follows:

[[Page 33408]]

Sec.  117.1007  Elizabeth River-Eastern Branch.

* * * * *
    (c) * * *
    (1) Shall open on signal at any time, except from 5 a.m. to 9 a.m. 
and from 3 p.m. to 7 p.m., Monday through Friday, except Federal 
holidays.
    (2) From 5 a.m. to 9 a.m. and from 3 p.m. to 7 p.m., Monday through 
Friday, except Federal holidays, shall open at any time for commercial 
vessels with a draft of 22 feet or more, provided that at least 12 
hours advance notice has been given to the Berkley Bridge Traffic 
Control room at (757) 494-2490.

    Dated: May 31, 2005.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 05-11397 Filed 6-7-05; 8:45 am]
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