[Federal Register Volume 74, Number 195 (Friday, October 9, 2009)]
[Proposed Rules]
[Pages 52158-52161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24485]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2009-0754]
RIN 1625-AA09


Drawbridge Operation Regulation; Elizabeth River, Eastern Branch, 
Norfolk, VA

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to temporarily change the regulations 
that govern the operation of the Berkley Bridge, mile 0.4, across the 
Eastern Branch of the Elizabeth River, Norfolk, VA. Due to the 
temporary closure of two area bridges, the Berkley Bridge has 
experienced an increase in traffic volume. The proposed change would 
provide set opening periods for the bridge during the day, relieving 
vehicular traffic congestion during the weekday daytime hours while 
still providing for the reasonable needs of navigation.

DATES: Comments, related material, and requests for public meeting must 
be received by the Coast Guard on or before December 8, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0754 using any one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: 202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these methods. See the 
``Public Participation and Request for Comments'' portion of the 
SUPPLEMENTARY INFORMATION section below for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or e-mail Waverly Gregory, Bridge Administrator, Fifth Coast 
Guard District, telephone 757-398-6222, e-mail 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. All comments received will be posted, 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0754), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online (http://www.regulations.gov), or by fax, mail or hand delivery, 
but please use only one of these means. If you submit a comment online 
via http://www.regulations.gov, it will be considered received by the 
Coast Guard when you successfully transmit the comment. If you fax, 
hand delivery, or mail your comment, it will be considered as having 
been received by the Coast Guard when it is received at the Docket 
Management Facility. We recommend that you include your name and a 
mailing address, an e-mail address, or a phone number in the body of 
your document so that we can contact you if we have questions regarding 
your submission.
    To submit your comment online, go to http://www.regulations.gov, 
click on the ``Submit a Comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu select 
``Proposed Rules'' and insert ``USCG-2009-0754'' in the ``Keyword'' 
box. Click ``Search'' then click on the balloon shape in the 
``Actions'' column. If you submit your comments by mail or hand 
delivery, submit them in an

[[Page 52159]]

unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
click on the ``read comments'' box, which will then become highlighted 
in blue. In the ``Keyword'' box insert ``USCG-2009-0754'' and click 
``Search.'' Click the ``Open Docket Folder'' in the ``Actions'' column. 
You may also visit the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue SE., Washington, DC, 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. We have an 
agreement with the Department of Transportation to use the Docket 
Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain 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 cities of Chesapeake and Norfolk Virginia, the 
Virginia Department of Transportation (VDOT) who owns and operates the 
lift-type Berkley Bridge has requested a temporary change to the 
existing bridge regulations. The current regulation set out in 33 CFR 
117.1007(b) and (c) allows the Berkley Bridge, mile 0.4, in Norfolk, 
Virginia 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 a.m. to 9 a.m. and from 3 p.m. to 7 p.m., Monday 
through Friday, except Federal holidays, and shall open at any time for 
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. Vessel traffic on this waterway consists of 
pleasure craft, tug and barge traffic, and ships with assist tugs 
seeking repairs. There is no alternate waterway route.
    Due to the temporary closure of two area bridges, this bridge and 
its approaches have experienced traffic back-ups, delays, and traffic 
congestion due to an increase in vehicular traffic. This temporary 
change will allow from March 9, 2010 to October 5, 2012, the draw of 
the Berkley Bridge to open on signal to vessels at 9 a.m., 11 a.m., 1 
p.m., and 2:30 p.m. and permit VDOT to monitor, measure, and identify 
congested roadway locations during heavy traffic periods. By 
implementing scheduled bridge openings, we anticipate a decrease in 
vehicular traffic congestion during the daytime hours.
    Concurrent with the publication of the Notice of Proposed 
Rulemaking, a Test Deviation [USCG-2009-0754] has been issued to allow 
VDOT to test the proposed schedule and to obtain data and public 
comments. The test period will be in effect during the entire Notice of 
Proposed Rulemaking comment period. Also, a count of the delayed 
vessels during the closure periods will be taken to ensure any future 
regulation will not have a significant impact on navigation. This NPRM 
has been coordinated with the main commercial waterway user group that 
has vessels transiting in this area and there is no expectation of any 
significant impacts on navigation. The Berkley Bridge is the principle 
arterial route in and out of the city of Norfolk and serves as the 
major evacuation highway in the event of emergencies. The monthly 
vehicular traffic count submitted by VDOT for the last quarter of 
calendar year 2008 shows the average daily traffic volumes at the 
Berkley Bridge as shown below:

October...................      2008    83,296  vehicles.
November..................      2008    99,643  vehicles.
December..................      2008   106,856  vehicles.
 

    The traffic counts reveal that from October 2008 to December 2008, 
the Berkley Bridge has experienced a seven percent (or 23,560-car) 
increase in traffic flow during the morning and evening rush hours. The 
Coast Guard believes that this traffic increase is due to the 
previously referenced temporary closure of two area bridges in 
November, 2008. The Coast Guard anticipates a continued increase in 
vehicular traffic over the bridge until one or both bridges are 
reopened to traffic at which time the vehicular traffic on the Berkley 
Bridge will subside.

Discussion of Proposed Rule

    The Coast Guard proposes to temporarily amend the regulations 
governing the Berkley Bridge, mile 0.4, at Norfolk, Virginia, at 33 CFR 
117.1007, by inserting a new paragraph(c)(3) to read as follows: From 
March 9, 2010 to October 5, 2012, the draw shall open on signal to 
vessels at 9 a.m., 11 a.m., 1 p.m. and 2:30 p.m. This temporary change 
will reduce the daytime openings to specific times which will help to 
alleviate the congestion on the Berkley Bridge and its approaches from 
the increased vehicular traffic during repair work of the 
aforementioned bridges.

Regulatory Analyses

    We developed this proposed 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 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

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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 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, in allowing four scheduled openings during the day, outside 
of the advance notice request opening. 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 (Pub. L. 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 GuardDistrict, (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 
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 Department of Homeland 
Security Management Directive 023-01, and 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 made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment because it simply 
promulgates the operating regulations or procedures for drawbridges. We 
seek any comments or information that may lead to the discovery of a 
significant environmental impact from this proposed rule.

List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 117 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; 33 CFR 1.05-1; Department of Homeland 
Security Delegation No.0170.1.

    2. In Sec.  117.1007 add a new paragraph (c)(3) to read as follows:

[[Page 52161]]

Sec.  117.1007  Elizabeth River--Eastern Branch

* * * * *
    (c) * * *
    (3) From March 9, 2010 to October 5, 2012, the draw shall open on 
signal at 9 a.m., 11 a.m., 1 p.m. and 2:30 p.m., Monday through Friday, 
except Federal holidays.

    Dated: August 20, 2009.
Wayne E. Justice,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. E9-24485 Filed 10-7-09; 11:15 am]
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