[Federal Register Volume 71, Number 125 (Thursday, June 29, 2006)]
[Rules and Regulations]
[Pages 36995-36999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5934]


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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 
(AICW), Elizabeth River, Southern Branch, Virginia

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 Dominion Boulevard (US 17) Bridge across the Southern 
Branch of the Elizabeth River, at Atlantic Intracoastal Waterway (AICW) 
mile 8.8, at Chesapeake, Virginia. The final rule will provide for 
hourly openings of the draw which will now start at 6 a.m. on weekdays 
and weekends and will not change the morning and evening rush hours, 
which are from 7 a.m. to 9 a.m. and from 4 p.m. to 6 p.m., 
respectively. The Dominion Boulevard (US 17) Bridge will continue to 
open on signal at any time for commercial vessels carrying liquefied 
flammable gas or other hazardous materials, and for commercial vessels 
that provide a two-hour advance notice. At all other times, the draw 
shall open on signal. These changes are necessary in order to relieve 
increased vehicular traffic congestion on weekends and between the 
weekday morning and evening rush hour periods while still providing for 
the reasonable needs of navigation.

DATES: This rule is effective July 31, 2006.

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 CGD05-05-041 and are available for inspection or 
copying at Commander (dpb), 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: Waverly W. Gregory, Jr., Bridge 
Administrator, Fifth Coast Guard District, at (757) 398-6222.

SUPPLEMENTARY INFORMATION:

Regulatory History

    The Coast Guard published in the Federal Register (69 FR 75472) 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. 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.
    On August 19, 2005, we published an interim rule with request for 
comment entitled ``Drawbridge Operation Regulations; Atlantic 
Intracoastal Waterway (AICW), Elizabeth River, Southern Branch, VA'' in 
the Federal Register (70 FR 48637). We received 28 e-mail messages and 
4 on-paper responses on the interim rule. No public

[[Page 36996]]

meeting was requested, and none was held.
    On January 13, 2006, we published an interim rule; reopening of 
comment period and a notice of public meeting entitled ``Drawbridge 
Operation Regulations; Atlantic Intracoastal Waterway, Elizabeth River, 
Southern Branch, VA'' in the Federal Register (71 FR 2151) and (70 FR 
2176), respectively.

Background and Purpose

    The current interim rule operating regulations require the Dominion 
Boulevard (US 17) Bridge across the Southern Branch of 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 and for 
commercial vessels that provide a two-hour advance notice. In addition, 
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 opens 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 commercial vessels carrying non-hazardous 
material that do not provide a 2-hour advance notice.
    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 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. Bridge records supplied by the City of Chesapeake indicate 
that the 2-hour advance notice requirement occurs about 10 times a 
month. Commercial vessel operators make a determined effort to schedule 
their transits on the hour and to circumvent the morning and evening 
rush hour closure periods for the Dominion Boulevard Bridge.
    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 commercial vessels carrying non-hazardous 
material that do not provide a 2-hour advance notice.
    We received 690 comments from the public on the NPRM. The majority 
of respondents favored scheduled openings of the drawbridge year-round 
between the morning and evening rush hour periods. As a result of these 
comments, on August 19, 2005, we published an interim rule with request 
for comment in the Federal Register (70 FR 48637) that changed the 
operating regulations for the Dominion Boulevard Bridge. We received 28 
e-mail messages and 4 on-paper responses from the public.
    After the interim rule comment period ended on October 3, 2005, we 
also received a number of unfavorable comments, many by telephone and 
e-mail, on the provisions of the interim rule from local commuters and 
recreational vessels that are referred to as ``snowbirds''. During the 
spring and fall months, the flow of recreational vessels is constant. 
There were approximately 7400 vessel passages occurring in 2005 over a 
five-month period (April, May, June, October and November) according to 
records furnished by the City of Chesapeake. Owners of these transitory 
recreational vessels are either traveling north to south towards a 
warmer climate in the fall or south to north towards a cooler climate 
in the spring and this can result in frequent bridge openings due to 
their numbers. (See Table A)

                                                     Table A
                                           [Bridge Openings for 2005]
----------------------------------------------------------------------------------------------------------------
  Jan.      Feb.      Mar.      Apr.       May      Jun.      Jul.     Aug.     Sep.     Oct.     Nov.     Dec.
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    262       255       359       503       724       502      484      384      423      461      407      310
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                                            [Boat Passages for 2005]
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  Jan.      Feb.      Mar.      Apr.       May      Jun.      Jul.     Aug.     Sep.     Oct.     Nov.     Dec.
----------------------------------------------------------------------------------------------------------------
    335       320       475       934      1911      1612      873      593      683     1660     1285      503
----------------------------------------------------------------------------------------------------------------

    Based on all of the information received, we have made changes to 
the final rule for the Dominion Boulevard Bridge.
    On January 13, 2006, we published an interim rule; reopening of the 
comment period in the Federal Register (71 FR 2151) because the 
Dominion Boulevard Bridge is utilized frequently and members of the 
public and the Mayor of Chesapeake communicated to the Coast Guard that 
they wanted to make additional comments. Concurrently, we also 
published a notice of public meeting in the Federal Register (71 FR 
2177). On March 1, 2006, from 3 p.m. to 8 p.m., we held the public 
meeting at the Chesapeake Central Library, at 298 Cedar Road, in 
Chesapeake, Virginia. The purpose of this public meeting was to provide 
an opportunity for citizens to

[[Page 36997]]

provide oral or written comments regarding the changes to the 
regulations that govern the operation of the Dominion Boulevard Bridge. 
Requests to make oral presentations on the interim rule at the public 
meeting ended on February 28, 2006. Written comments ended on March 10, 
2006.
    We received 195 comments from the public on the interim rule, 
including 32 oral remarks received at the public meeting.

Discussion of Comments and Changes

    The Coast Guard received 195 responses to the interim rule. The 
responses were supplied by 70 e-mails, 33 on-paper comments, 60 
comments accepted from an internet Web site survey posted by the City 
of Chesapeake along with 32 oral remarks offered at the public meeting.
    The majority of the responses could be categorized into one of four 
groups. One group of respondents preferred that the Coast Guard 
maintain the interim or current operating regulations for the Dominion 
Boulevard Bridge with no modifications.
    Another group of respondents offered differing adjustments to the 
morning and evening rush hour closure periods and the hourly opening 
schedule of the bridge. These respondents, mostly local commuters, 
generally preferred the changes offered by the City of Chesapeake to 
adjust the weekday morning and evening rush hour closure period from 
6:30 a.m. to 8:30 a.m. and 5 p.m. to 7 p.m., respectively, along with 
vessel openings every hour on the half-hour between the weekday rush 
hour periods and on weekends and Federal holidays. The local commuters 
expressed their opposition to the current morning rush hour closure 
period from 7 a.m. to 9 a.m. Due to unscheduled openings occurring 
before 7 a.m. which delayed morning transits on the Dominion Bridge, 
the commuters preferred that the Coast Guard either maintain the 
previous morning rush hour closure schedule from 6:30 a.m. to 8:30 a.m. 
or change the morning closure schedule to 6 a.m. to 8 a.m. Also, a 
number of the respondents proposed longer drawbridge closure periods to 
vessels than the current regulations from 6 a.m. to 9 a.m. for the 
morning rush hour and from 4 p.m. to 7 p.m. for the evening rush hour. 
They stated a preference that commercial vessels carrying non-hazardous 
materials be regulated.
    The third group of respondents included mariners who opposed the 
hourly restriction for vessel openings because of the potentially 
unsafe situation created while transiting this waterway and preferred a 
less restrictive half-hour opening schedule. Also, mariners in general 
suggested that if the Dominion Boulevard Bridge was to open only once 
each hour, an on the hour opening would be preferred.
    The fourth group of respondents offered no substantive changes to 
the current regulations but generally expressed their overall concerns 
regarding vehicular traffic delays, area development and plans for a 
higher-level replacement bridge.
    The Coast Guard thoroughly examined and considered all of these 
comments and made minor adjustments to the final rule. Hourly openings 
of the draw will now begin at 6 a.m. on weekdays and weekends. The draw 
will also open at 7 a.m. on weekdays, but after this opening will 
remain closed for the morning rush hour period. The weekday morning and 
evening rush hours will remain unchanged from 7 a.m. to 9 a.m. and from 
4 p.m. to 6 p.m., respectively. (See Table B)

                                 Table B
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   (Current) Interim regulations              Final regulations
------------------------------------------------------------------------
                     Year Round Operating Schedule*
------------------------------------------------------------------------
From 9 a.m. to 4 p.m...............  From 6 a.m. to 7 a.m. and from 9
                                      a.m. to 4 p.m.
Opens every hour on the hour.......  Opens every hour on the hour.
Commercial vessels must provide a    Commercial vessels must provide a
 two-hour advance notice for an on-   two-hour advance notice for an on-
 demand opening.**.                   demand opening.**
------------------------------------------------------------------------
                 Saturdays, Sundays and Federal Holidays
------------------------------------------------------------------------
From 7 a.m. to 6 p.m...............  From 6 a.m. to 6 p.m.
Opens every hour on the hour.......  Opens every hour on the hour.
Commercial vessels must provide a    Commercial vessels must provide a
 two-hour advance notice for an on-   two-hour advance notice for an on-
 demand opening.**.                   demand opening.**
------------------------------------------------------------------------
                         Rush Hour Restrictions*
------------------------------------------------------------------------
From 7 a.m. to 9 a.m.; and from 4    From 7 a.m. to 9 a.m.; and from 4
 p.m. to 6 p.m..                      p.m. to 6 p.m.
Need not open. Commercial vessels    Need not open. Commercial vessels
 must provide a two-hour advance      must provide a two-hour advance
 notice for an on-demand opening.**.  notice for an on-demand opening.**
------------------------------------------------------------------------
* Mon. to Fri., except Federal holidays.
** Bridge will open on demand for vessels carrying hazardous liquefied
  flammable gas or other hazardous materials; and open on demand at all
  other times.

    The modifications made to this final rule will help to address 
vehicular traffic congestion and reduce traffic delays at the Dominion 
Boulevard Bridge during and between the weekdays rush hour periods, on 
weekends and Federal holidays, while still providing for the reasonable 
needs of navigation.

Discussion of Rule

    The Coast Guard amends 33 CFR 117.997, by revising paragraph 
(g)(3).
    Paragraph (g)(3) will be revised to read ``From 6 a.m. to 7 a.m., 
from 9 a.m. to 4 p.m., Monday to Friday, and from 6 a.m. to 6 p.m. on 
Saturdays, Sundays and Federal holidays, the draw need only be opened 
every hour on the hour, except the draw shall open on signal for 
commercial vessels that qualify under paragraphs (g)(1) or (g)(2) of 
this section.''

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

[[Page 36998]]

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 based on the fact that the changes 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 the 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 
schedule bridge openings minimizes delays.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding 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.
    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 
rate each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-800-REG-FAIR 
(1-800-734-3247).

Collection of Information

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

Federalism

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

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by 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 
and Department of Homeland Security Management Directive 5100.1, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a 
preliminary determination 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, we believe that this rule should be 
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.

[[Page 36999]]

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.  117.997, paragraph (g)(3) is revised 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) * * *
    (3) From 6 a.m. to 7 a.m. and from 9 a.m. to 4 p.m., Monday to 
Friday, and from 6 a.m. to 6 p.m. on Saturdays, Sundays, and Federal 
holidays, the draw need only be opened every hour on the hour, except 
the draw shall open on signal for commercial vessels that qualify under 
paragraphs (g)(1) or (g)(2) of this section.
* * * * *

    Dated: June 16, 2006.
L.L. Hereth,
Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard 
District.
[FR Doc. 06-5934 Filed 6-28-06; 8:45 am]
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