[Federal Register Volume 70, Number 217 (Thursday, November 10, 2005)]
[Rules and Regulations]
[Pages 68335-68337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22388]


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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: Final rule.

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SUMMARY: The Coast Guard is changing 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 final rule will 
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 ends at 7 p.m., Monday through 
Friday, except Federal holidays. The rule will also reduce the deep-
draft commercial vessel requirement to 18 feet and the advance notice 
period to 6 hours. This change will relieve vehicular traffic 
congestion during the weekday rush hours while still providing for the 
reasonable needs of navigation.

DATES: This rule is effective December 12, 2005.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD05-05-049 and are available for inspection or 
copying at Commander (obr), Fifth Coast Guard District, Federal 
Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 
between 8 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays. The Fifth Coast Guard District maintains the public docket 
for this rulemaking.

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

SUPPLEMENTARY INFORMATION:

Regulatory History

    On June 8, 2005, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulations; Elizabeth River, 
Eastern Branch, VA'' in the Federal Register (70 FR 33405). We received 
two comments on the proposed rule. No public meeting was requested, and 
none was held.

Background and Purpose

    On behalf of the City of Norfolk, the Virginia Department of 
Transportation

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(VDOT) who owns and operates this lift-type bridge, requested a change 
to the existing regulations for the Berkley Bridge. The current 
regulation, found at 33 CFR 117.1007, 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. It also mandates that 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; shall open at any time for commercial vessels with a draft of 
22 feet or more, provided at least 12 hours advance notice has been 
given to the Berkley Bridge Traffic Control Room at (804) 494-2424, and 
open on signal at any time for a vessel in distress.
    This final rule changes the regulations by extending the rush hour 
closure periods, by reducing the advance notice requirement to 6 hours 
for deep-draft vessels, and by ``cleaning up'' the remaining regulatory 
text to remove redundancy. These changes will help to alleviate the 
current traffic congestion. The Berkley Bridge is a principle arterial 
route that serves as the major evacuation highway in the event of 
emergencies or evacuations. 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. Until the repairs were 
completed, the Coast Guard responded by issuing a temporary final rule 
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.
    Therefore, this final rule will help alleviate the growing 
vehicular traffic congestion and to increase public safety, while still 
balancing the needs of marine and vehicular traffic.

Discussion of Comments and Changes

    The Coast Guard received one comment on the NPRM from the Hampton 
Roads Maritime Association and one from the C&P Tug and Barge Company. 
Both respondents opposed further restrictions to the Berkley Bridge 
presented in the NPRM and requested changes. The changes offered by the 
respondents would reduce the deep-draft commercial vessel requirement 
from 22 feet to 18 feet and the advance notice period from 12 hours to 
6 hours. These changes would give deep-draft commercial vessel 
operators more flexibility to manage tide restrictions.
    The Coast Guard considered these changes to be safer to navigation 
and the final rule was changed to reflect these modifications.

Regulatory Evaluation

    This final 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 final 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 this rule will 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.
    For the reasons stated above, 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking process. No 
assistance was requested from any small entity.

Collection of Information

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

Federalism

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

Unfunded Mandates Reform Act

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

Taking of Private Property

    This rule 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, 
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

[[Page 68337]]

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 does 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 M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of a categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1, paragraph (32)(e) of the Instruction, from further 
environmental documentation 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

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. In Sec.  117.1007, remove paragraphs (c)(3) and (c)(4) and revise 
paragraphs (c)(1) and (c)(2) to read as follows:


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 18 feet or more, provided that at least 6 hours 
advance notice has been given to the Berkley Bridge Traffic Control 
room at (757) 494-2490.

    Dated: November 2, 2005.
L.L. Hereth,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 05-22388 Filed 11-9-05; 8:45 am]
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