[Federal Register Volume 70, Number 160 (Friday, August 19, 2005)]
[Rules and Regulations]
[Pages 48637-48639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16494]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-05-041]
RIN 1625-AA09


Drawbridge Operation Regulations; Atlantic Intracoastal Waterway, 
South Branch of the Elizabeth River, Chesapeake, VA

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comment.

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SUMMARY: The Coast Guard is changing the regulations that govern the 
operation of the Dominion Boulevard (US 17) Bridge across the Southern 
Branch of the Elizabeth River, at Atlantic Intracoastal Waterway (AICW) 
mile 8.8, at Chesapeake, Virginia. This rule will change the morning 
rush hour closure period so that it starts at 7 a.m. and ends at 9 a.m. 
From 9 a.m. to 4 p.m., Monday through Friday, and from 7 a.m. to 6 p.m. 
on Saturdays, Sundays and Federal holidays, the draw need be opened 
every hour on the hour. This change is necessary to relieve vehicular 
traffic congestion and reduce traffic delays during weekday rush hour 
periods, and on weekends and Federal holidays, while still providing 
for the reasonable needs of navigation.

DATES: This rule is effective September 19, 2005. Comments and related 
material must reach the Coast Guard on or before October 3, 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 
docket number CGD05-05-041 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: Waverly W. Gregory, Jr., Bridge 
Administrator, Fifth Coast Guard District, at (757) 398-6222.

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-
041), 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 interim rule in view of them.

Regulatory History

    The Coast Guard published in the Federal Register a temporary 90-
day deviation and request for comments from the drawbridge operation 
regulations in an effort to test an alternate drawbridge operation 
schedule and to solicit comments from the public (69 FR 75472, Dec. 17, 
2004). The deviation was in effect from December 13, 2004 to March 13, 
2005, and from 8:30 a.m. to 4 p.m., Monday through Friday, except 
Federal holidays, the draw was opened only every hour on the half hour. 
Fifty-two e-mail messages and 4 on-paper responses were received during 
the comment period that ended March 14, 2005.
    On May 10, 2005, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulations; Atlantic 
Intracoastal Waterway (AICW), Elizabeth River, Southern Branch, VA'' in 
the Federal Register (70 FR 24492). We received 690 comments on the 
proposed rule. No public hearing was requested, and none was held.

Background and Purpose

    Current regulations require the Dominion Boulevard (US 17) Bridge 
across the Southern Branch of the Elizabeth River, at AICW mile 8.8, to 
open on signal at any time for commercial vessels carrying liquefied 
flammable gas or other hazardous materials. From 6:30 a.m. to 8:30 a.m. 
and from 4 p.m. to 6 p.m., Monday through Friday, except Federal 
holidays, the draw need not open for the passage of recreational 
vessels and the draw need not open for commercial cargo vessels 
carrying non-hazardous material that do not provide a 2-hour advance 
notice. In addition, from Memorial Day to Labor Day, from 8:30 a.m. to 
4 p.m., Monday through Friday, except Federal holidays, the draw is 
opened only every hour on the half-hour.
    On December 17, 2004, we published a notice of temporary deviation 
from the regulations and request for comments entitled ``Drawbridge 
Operation Regulations; Atlantic Intracoastal Waterway (AICW), Elizabeth 
River, Southern Branch, VA'' in the Federal Register (69 FR 75472). The 
temporary deviation was an effort to test an alternate drawbridge 
operation schedule for 90 days and to solicit comments from the public. 
In accordance with the temporary deviation, from December 13, 2004 to 
March 13, 2005, from 8:30 a.m. to 4 p.m., Monday through Friday, except 
Federal holidays, the draw was opened only every hour on the half hour.
    The Coast Guard received 52 e-mail messages and 4 on-paper 
responses commenting on the provisions of the temporary deviation. The 
majority of the comments, from motorists, favored scheduled versus 
unscheduled bridge openings, so they could better plan their movements. 
Many respondents

[[Page 48638]]

indicated that even though the vehicular rush hour traffic starts at 
6:30 a.m., the weekday rush hour traffic peaks between 7 a.m. and 9 
a.m. In addition, they stated a preference that commercial vessels 
carrying non-hazardous materials be regulated. However, since tugs and 
tugs with tows have no place to tie up in the proximity of the bridge 
in order to wait for a bridge opening, the Coast Guard will continue to 
include them in the 2-hour advance notice requirement.
    The NPRM, which was published on May 10, 2005, proposed on-signal 
openings for commercial vessels carrying hazardous materials and for 
commercial vessels that provide a two-hour advance notice. In addition, 
the NPRM proposed that year-round from 9 a.m. to 4 p.m., Monday through 
Friday, except Federal holidays, the draw need be opened every hour on 
the hour; from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m., Monday to 
Friday, except Federal holidays, the draw need not open for 
recreational vessels, and need not open for commercial vessels carrying 
non-hazardous material that do not provide a 2-hour advance notice.
    After publication of the proposal, we received 690 comments from 
the public. The majority of respondents favored scheduled openings of 
the drawbridge year-round between the morning and evening rush hour 
periods.
    This interim rule, when implemented, will ease vehicle traffic 
congestion which results from unscheduled openings of the drawbridge. 
In addition, this interim rule changes the morning rush hour period so 
that it starts at 7 a.m. and ends at 9 a.m., Monday to Friday, except 
Federal holidays. Therefore, the first drawbridge opening for vessels 
after the morning rush hour will occur at 9 a.m. and the last opening 
before the evening rush hour will be at 4 p.m. The Dominion Boulevard 
Bridge will open for vessels every hour on the hour between 9 a.m. and 
4 p.m., Monday through Friday and from 7 a.m. to 6 p.m. on Saturdays, 
Sundays and Federal holidays.
    These changes will coincide with the operation of the Great Bridge 
(S168) and the Great Bridge Locks (the Locks) and enable transient 
craft to reduce delays in navigating the AICW, while also helping to 
ease vehicular traffic congestion. These changes to the bridge 
operating regulations are reasonable because the interim rule will 
relieve vehicular traffic congestion and reduce traffic delays between 
weekday rush hour periods, and on weekends and Federal holidays, while 
still providing for the reasonable needs of navigation.

Discussion of Comments and Changes

    The Coast Guard received 690 responses to the NPRM. The vast 
majority of those comments (approximately 647) were supplied from an 
internet Web site survey posted by the City of Chesapeake. The other 
responses were supplied by 24 on-paper comments; 17 e-mails and 2 
resolutions (1 from the Virginia State Legislators, and the other from 
the City Council for the City of Chesapeake).
    An examination of the comments revealed that most of the 
respondents (about 60 percent), during the weekday, use their vehicles 
on the bridge in the morning between 7 a.m. to 8 a.m. and over 60 
percent of the motoring public crosses the Dominion Boulevard Bridge on 
the weekends. Also, mariners in general suggested that if the Dominion 
Boulevard Bridge must open only once each hour, that an on the hour 
opening would be better.
    Additionally, the City of Chesapeake (hereinafter the City) which 
owns and operates the drawbridge submitted a City Council resolution 
that offered changes to the proposed regulation. The City asserts that 
since traffic volumes on the weekends on Dominion Boulevard average 
around 24,000 vehicles per day compared with approximately 30,000 
vehicles on weekdays, that the Coast Guard should consider restricting 
drawbridge openings on weekends from 6 a.m. to 7 p.m. to every hour on 
the hour with no rush hour restrictions and also maintain the existing 
weekday morning rush hour period from 6:30 a.m. to 8:30 a.m.
    The Coast Guard examined the operation of the Great Bridge (S168) 
across the Albemarle and Chesapeake at AICW mile 12.0 and the Locks 
located just south of the Dominion Boulevard Bridge. The Great Bridge 
(S168) provides vessel openings on the hour between 6 a.m. to 7 p.m., 
seven days a week, year-round. The Locks, owned and operated by the 
U.S. Army Corps of Engineers, opens for vessels on demand from 7 a.m. 
to 6 p.m.
    As a result of comments received, changes were made to the NPRM and 
this interim rule will relieve vehicular traffic congestion and reduce 
traffic delays between weekday rush hour periods, and on weekends and 
Federal holidays, while still providing for the reasonable needs of 
navigation.
    The Coast Guard amends 33 CFR Sec.  117.997(g), by revising 
paragraphs (g)(2) through (g)(4). Paragraph (g)(2) modifies the morning 
closure period during rush hour to 7 a.m. to 9 a.m., Monday through 
Friday, except Federal holidays. Paragraph (g)(3) would delete the 
phrase ``From Memorial Day to Labor Day'' and modify the paragraph to 
read ``From 9 a.m. to 4 p.m., Monday through Friday, and from 7 a.m. to 
6 p.m. on Saturdays, Sundays and Federal holidays, the draw need only 
be opened every hour on the hour. During these hours, the draw will 
continue to open on signal for commercial vessels carrying liquefied 
flammable gas or other hazardous materials, and for commercial cargo 
vessels not carrying hazardous materials, including tugs and tugs with 
tows, when notice has been given at least 2 hours in advance.'' 
Paragraph (g)(4) would replace the wording from ``on the half hour'' to 
``on the hour''.

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 changes will have 
only a minimal impact on maritime traffic transiting the bridge. 
Mariners can plan their transits in accordance with the scheduled 
bridge openings to minimize delays.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule 
would not have a significant economic impact on a substantial number of 
small entities. This conclusion is based on the fact that the rule adds 
only minimal restrictions to the movement of navigation, and mariners 
who plan their transits in accordance with the scheduled bridge 
openings minimize delays.

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

[[Page 48639]]

understanding this rule so that they could better evaluate its effects 
on them and participate in the rulemaking process. No assistance was 
requested from any small entity.

Collection of Information

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

Federalism

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

Unfunded Mandates Reform Act

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

Taking of Private Property

    This rule 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 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 would not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

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

Energy Effects

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

Technical Standards

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

Environment

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

List of Subjects in 33 CFR Part 117

    Bridges.

Regulations

0
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; 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.

0
2. Revise section 117.997, paragraphs (g)(2), (g)(3), and (g)(4), to 
read as follows:


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

* * * * *
    (g) * * *
    (1) * * *
    (2) From 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m., Monday through 
Friday, need not open for the passage of recreational vessels, and need 
open for commercial cargo vessels not carrying hazardous materials, 
including tugs and tugs with tows, only when notice has been given at 
least 2 hours in advance to the Dominion Boulevard Bridge at (757) 547-
0521.
    (3) From 9 a.m. to 4 p.m., Monday through Friday, and from 7 a.m. 
to 6 p.m. on Saturdays, Sundays, and Federal holidays, the draw need 
only be opened every hour on the hour. During these hours, the draw 
will continue to open on signal for commercial vessels carrying 
liquefied flammable gas or other hazardous materials, and for 
commercial cargo vessels not carrying hazardous materials, including 
tugs and tugs with tows, when notice has been given at least 2 hours in 
advance.
    (4) If any vessel is approaching the bridge and cannot reach the 
draw exactly on the hour, the drawtender may delay the opening up to 
ten minutes past the hour for the passage of the approaching vessel and 
any other vessels that are waiting to pass.
* * * * *

    Dated: August 11, 2005.
L.L. Hereth,
Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard 
District.
[FR Doc. 05-16494 Filed 8-18-05; 8:45 am]
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