[Federal Register Volume 75, Number 151 (Friday, August 6, 2010)]
[Rules and Regulations]
[Pages 47461-47464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19518]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[USCG-2009-0754]
RIN 1625-AA09


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is temporarily changing the drawbridge 
operation regulations of the Berkley (I-264) Bridge, at mile 0.4, 
across the Eastern Branch of the Elizabeth River, Norfolk, VA. This 
change will allow the drawbridge to operate with four opening periods 
between the rush hours until October 5, 2012, relieving increased 
vehicular traffic congestion while still providing for the reasonable 
needs of navigation.

DATES: This rule is effective from 9 a.m. on September 4, 2010, until 
2:30 p.m. on October 5, 2012.

ADDRESSES: Comments and related materials received from the public, as 
well as documents mentioned in this preamble as being available in the 
docket, are part of docket USCG-2009-0754 and are available online by 
going to http://www.regulations.gov, inserting USCG-2009-0754 in the 
``Keyword'' box, and clicking ``Search.'' This material is also 
available for inspection or copying at the 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, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call Terrance Knowles, Environmental Protection Specialist, Fifth Coast 
Guard District, at 757-398-6587. If you have questions on viewing the 
docket, call Renee V. Wright, Program Manager, Docket Operations, 
telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On October 9, 2009, we published a notice of temporary deviation 
request for comments entitled ``Drawbridge Operation Regulations; 
Elizabeth River, Eastern Branch, Norfolk, VA'' in the Federal Register 
(74 FR 52143) and a notice of proposed rulemaking (NPRM) entitled 
``Drawbridge Operation Regulations; Elizabeth River, Eastern Branch, 
Norfolk, VA'' in the Federal Register (74 FR 52158). We received 861 
comments on the published deviation and NPRM.
    On March 3, 2010, we published another notice of temporary 
deviation request for comments entitled ``Drawbridge Operation 
Regulations; Elizabeth River, Eastern Branch, Norfolk, VA'' in the 
Federal Register (75 FR 9521) and a supplemental notice of proposed 
rulemaking (SNPRM) entitled ``Drawbridge Operation Regulations; 
Elizabeth River, Eastern Branch, Norfolk, VA'' in the Federal Register 
(75 FR 9557). We received four comments on the published deviation and 
SNPRM. No public meeting was requested, and none was held.

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 requested a temporary change to the existing 
bridge regulations. In the closed to navigation position, the Berkley 
Bridge has a vertical clearance of 48 feet above mean high water. The 
current regulation set out in Title 33 CFR Part 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, as required by 33 CFR 117.1007(b) and (c). 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 a temporary closure of two area bridges, there has been a 
significant increase in vehicular traffic on the Berkley Bridge causing 
back-ups, delays, and congestion on the bridge and its approaches. The 
NPRM proposed opening the draw of the Berkley Bridge on signal at 9 
a.m., 11 a.m., 1 p.m., and 2:30 p.m. from October 9, 2009 to October 5, 
2012, and

[[Page 47462]]

permitted VDOT to monitor, measure, and identify congested roadway 
locations during heavy traffic periods. By implementing scheduled 
bridge openings, we anticipated a decrease in vehicular traffic 
congestion during the daylight hours.
    Concurrent with the publication of the Notice of Proposed 
Rulemaking, a Test Deviation [USCG-2009-0754] was issued to allow VDOT 
to test the proposed schedule and to obtain data and public comments. 
The test period was in effect during the entire Notice of Proposed 
Rulemaking comment period. Also, a count of the delayed vessels during 
the closure periods was taken to determine the impact of the proposed 
regulation 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 average daily traffic volumes at the Berkley 
Bridge for the last quarter of calendar year 2008, as submitted by VDOT 
with its request for schedule change, are as follows:

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

    The traffic counts revealed that from October 2008 to December 
2008, the Berkley Bridge experienced a seven percent (or 23,560-car) 
increase in traffic flow. The Coast Guard received 861 responses to the 
NPRM. The vast majority of those responses (850) were supplied from an 
internet Web site survey posted by VDOT. Of the 850 VDOT-sponsored 
surveys, 484 had written comments in addition to responses to the 
survey with the other 366 comments containing only responses to the 
survey questionnaire. The remaining 11 responses consisted of 7 paper 
comments and 4 e-mails.
    All but five of the favored the new schedule presented in the 
temporary deviation and NPRM. Many responses stated that planned 
openings would permit motorists to better plan their commutes and 
thereby avoid delays.
    Four local maritime facilities and the Virginia Maritime 
Association (VMA), who represents waterborne commerce in the Port of 
Hampton Roads, responded with their concerns opposing the new schedule. 
These organizations expressed concerns that the proposed regulatory 
actions created unsafe conditions for navigation particularly for 
vessels carrying hazardous cargoes, vessels with a draft of greater 
than 18 feet, and vessels delayed through due to uncontrollable 
external factors. The maritime community offered recommendations for 
changes that they believe will provide a reasonable balance between 
marine and land based transportation.
    The Coast Guard has reviewed the additional bridge data supplied by 
VDOT. The information indicated that the test deviation reduced the 
amount of time the bridge opened for vessels. Between October 20, 2009, 
and December 30, 2009, there were approximately 85 vessel passages 
requiring 69 bridge openings. Most of these openings were provided for 
commercial vessels, with a maximum of four vessels transiting through a 
single bridge opening.
    With an average of fewer than two openings per day (1.23) during 
the test deviation, VDOT contended that when bridge openings in 
2009(during the test deviation) were compared to the same months in 
2008 (before the test deviation) there was a 30 percent reduction in 
the total number of minutes the bridge was opened for vessels and the 
number of openings also decreased by 21 percent. In 2009, the Berkley 
Bridge averaged 97,135 vehicles per day.
    VDOT, VMA and the local maritime facilities (VDOT/VMA) identified a 
need for mariners to have more access transiting through the Berkley 
Bridge. The parties recommended operating procedures for inclusion in 
the regulatory language. The recommended operating procedures and the 
Coast Guard responses are as follows:
    1. The bridge is to open on signal at any time for vessels carrying 
hazardous cargo.
    2. The bridge is to 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.
    VMA stated that certain vessels and conditions make safe bridge 
transits more difficult and dangerous. VMA/VDOT recommended 
establishing provisions that would exempt vessels from only transiting 
at the scheduled opening time.
    The Coast Guard proposed the following: The draw shall open on 
signal at any time for vessels carrying, in bulk, cargoes regulated by 
46 CFR subchapters D or O, or Certain Dangerous Cargoes as defined in 
33 CFR 160.204; and for all other vessels, the draw shall open on 
signal at any time, except from 5 a.m. to 7 p.m., Monday through 
Friday, except Federal holidays. During these times: The draw shall 
open for commercial vessels with a draft of 18 feet or more, provided 
at least 6 hours notice was given to the Berkley Bridge Traffic Control 
Room at (757) 494-2490.
    3. If a vessel has made prior arrangements for a delayed opening, 
and there are vessels awaiting transit, the opening may be delayed if 
the master(s) of the waiting vessel(s) agree to a delayed opening to 
accommodate the delayed vessel. Otherwise the opening will accommodate 
the waiting vessel(s) only, and close upon their clearing the bridge.
    VMA stated that communication between vessels is important to 
scheduling a single opening at the Berkley Bridge. The Coast Guard 
asserts that communication between vessels and the bridge tender should 
be coordinated to insure and maintain the safety of navigation. 
However, specific regulatory language controlling communication between 
vessels is unwarranted and not within the scope of drawbridge operating 
regulations.
    4. An opening will be provided to a transiting vessel up to, but no 
more than, 30 minutes following the scheduled opening time provided the 
transiting vessel has communicated their estimated time of arrival to 
the Berkley Bridge tender prior to the scheduled opening time.
    VMA stated that the timing of large vessel movements is affected by 
a number of uncontrollable and external factors. The effects of winds, 
currents, and tides have an important impact on safe navigation and 
those conditions.
    In addition, VMA indicated that the current test deviation creates 
a situation whereby marine traffic will stack up while waiting for an 
opening, thus creating vessel congestion, a navigational hazard.
    For these situations, the Coast Guard proposed the following: If 
the bridge is not opened during a particular scheduled opening per 
paragraph (d)(3)(ii) and a vessel has made prior arrangements for a 
delayed opening, the draw tender may provide a single opening up to 30 
minutes past that scheduled opening time for that signaling vessel, 
except at 2:30 p.m. The draw tender may provide a single opening up to 
20 minutes past the 2:30 p.m. scheduled opening time for a signaling 
vessel that made prior arrangements for a delayed opening. A vessel may 
make prior arrangements for a delayed opening by contacting the Berkley 
Bridge Traffic Control Room at (757) 494-2490.
    5. The bridge is to open at any time if, in the professional 
judgment of the vessel operator, the environmental or operating 
conditions compromise navigational safety.
    The Coast Guard responded to this comment by indicating that under 
33 CFR 117.31, ``Drawbridge operations for

[[Page 47463]]

emergency vehicles and emergency vessels'', paragraph (b)(2) adequately 
provides for unscheduled vessel openings of the bridge in the event of 
a marine emergency.
    The supplemental proposed rule was also rephrased to integrate the 
restricted morning and evening rush hour times (from 5 a.m. to 9 a.m. 
and from 3 p.m. to 7 p.m.) with the test deviation period from 9 a.m. 
to 3 p.m. The Coast Guard suggested the following paragraph: For all 
other vessels, the draw shall open on signal at any time, except from 5 
a.m. to 7 p.m., Monday through Friday, except Federal holidays.
    Based on all of the comments received, the Coast Guard issued the 
SNPRM.

Discussion of Comments and Changes

    The Coast Guard received four responses to the SNPRM and the second 
temporary deviation, two e-mails and one each by letter and to the Web 
site at http://www.regulations.gov.
    VMA, who represents waterborne commerce in the Port of Hampton 
Roads, responded in writing with its support of the revised proposed 
regulation and its statement that the current operating regulation 
incorporates the minimum degree of flexibility that the maritime 
industry can accept. VDOT also indicated that the operating schedule in 
the temporary deviation and the revised proposed regulation has 
improved the flow of vehicular traffic while still meeting the minimum 
needs of navigation.
    VMA, VDOT and two private citizens expressed concerns about 
unscheduled openings that caused vehicular traffic congestion. The 
unscheduled openings were provided for Government vessels, vessels with 
a draft of 18 feet or more that provided at least 6 hours advance 
notice and for vessels hauling dangerous cargo.
    The Coast Guard reviewed the bridge data supplied by VDOT. The 
information indicated that during the deviation test period (from March 
3, 2010 to July 1, 2010), that a total of 260 potential bridge openings 
for vessels could have been provided Monday through Friday, except 
Federal holidays, at 9 a.m., 11 a.m., 1 p.m. and 2:30 p.m. The data 
showed the bridge actually opened only 88 of the 260 potential 
openings. The data also revealed that seven bridge openings were 
provided approximately 15 minutes past the scheduled opening times of 9 
a.m., 11 a.m. and 1 p.m. and that the average opening usually lasted 12 
minutes; a later opening at 2:30 p.m. would add to the traffic 
congestion during the rush hour. A majority of these openings were 
provided for commercial vessels, with a maximum of four vessels 
transiting through a single bridge opening.
    These subsequent changes to the operating procedures appear to have 
reduced vehicular traffic congestion while still providing for the 
reasonable needs of navigation. Based on the information provided, we 
will implement a final rule with no changes to the SNPRM.

Regulatory Analyses

    We developed this 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 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.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation 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 
still plan their trips in accordance with the scheduled bridge 
openings, and to minimize delays, vessels that can pass under the 
bridge without a bridge opening may do so at all times.

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 will 
not have a significant economic impact on a substantial number of small 
entities.
    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 and vessels that can pass under the 
bridge without a bridge opening may do so at all times.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), in the SNPRM we offered to 
assist small entities in understanding the rule so that they could 
better evaluate its effects on them and participate in the rulemaking 
process. 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 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). 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 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 (adjusted for 
inflation) 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 will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and

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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 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 Department of Homeland Security 
Management Directive 023-01 and 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 this action is one of a category of actions which do not 
individually or cumulatively have a significant effect on the human 
environment. This rule is categorically excluded, under figure 2-1, 
paragraph (32)(e) of the Instruction.
    Under figure 2-1, paragraph (32)(e), of the Instruction, an 
environmental analysis checklist and a categorical exclusion 
determination are not required for this rule.

List of Subjects in 33 CFR Part 117

    Bridges.


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; 33 CFR 1.05-1; Department of Homeland 
Security Delegation No. 0170.1.


0
2. From September 4, 2010, to October 5, 2012, in Sec.  117.1007, 
suspend paragraphs (b) and (c) and add new paragraph (d) to read as 
follows:


Sec.  117.1007  Elizabeth River--Eastern Branch.

* * * * *
    (d) The draw of the Berkley Bridge, mile 0.4, at Norfolk, shall 
operate as follows:
    (1) The draw shall remain closed one hour prior to the published 
start of a scheduled marine event regulated under Sec. 100.501, and 
shall 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.
    (2) The draw shall open on signal at any time for vessels carrying, 
in bulk, cargoes regulated by 46 CFR subchapters D or O, or Certain 
Dangerous Cargoes as defined in 33 CFR 160.204.
    (3) For all other vessels, the draw shall open on signal at any 
time, except from 5 a.m. to 7 p.m., Monday through Friday, except 
Federal holidays. During these times, the draw shall:
    (i) Open for commercial vessels with a draft of 18 feet or more, 
provided at least 6 hours notice was given to the Berkley Bridge 
Traffic Control room at (757) 494-2490.
    (ii) Open on signal at 9 a.m., 11 a.m., 1 p.m. and 2:30 p.m.
    (4) If the bridge is not opened during a particular scheduled 
opening per paragraph (d)(3)(ii) of this section and a vessel has made 
prior arrangements for a delayed opening, the draw tender may provide a 
single opening up to 30 minutes past that scheduled opening time for 
that signaling vessel, except at 2:30 p.m. The draw tender may provide 
a single opening up to 20 minutes past the 2:30 p.m. scheduled opening 
time for a signaling vessel that made prior arrangements for a delayed 
opening. A vessel may make prior arrangements for a delayed opening by 
contacting the Berkley Bridge Traffic Control room at (757) 494-2490.

    Dated: July 23, 2010.
William D. Lee,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2010-19518 Filed 8-5-10; 8:45 am]
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