2010-28738. Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Elizabeth River, Southern Branch, VA

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Coast Guard proposes to temporarily change the regulations that govern the operation of the Gilmerton (US13/460) Bridge across the Elizabeth River (Southern Branch), AIWW mile 5.8, at Chesapeake, VA. Due to the construction of the new Gilmerton Highway Bridge, the existing drawbridge has experienced increased delays to vehicular traffic during unscheduled vessel openings. The proposed change would provide adjustments and set opening periods for the bridge during the day, relieving vehicular traffic congestion during the weekday and weekend daytime hours while still providing for the reasonable needs of navigation.

DATES:

Comments and related material must be received by the Coast Guard on or before April 18, 2011.

ADDRESSES:

You may submit comments identified by docket number USCG-2010-0879 using any one of the following methods:

(1) Federal eRulemaking Portal: http://www.regulations.gov.

(2) Fax: [phone].

(3) 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.

(4) 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 Bill H. Brazier, Bridge Management Specialist, Fifth Coast Guard District; telephone [phone], [e-mail]. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

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-2010-0879), 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 deliver, 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-2010-0879” 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 unbound format, no larger than 81/2 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-2010-0879” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit either 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.

Basis and Purpose

The City of Chesapeake, Virginia (the City), who owns and operates the lift-type Gilmerton (US13/460) Bridge, has requested a temporary change to the existing bridge regulations. The current regulation, set out in 33 CFR 117.997(c), requires the Gilmerton (US13/460) Bridge, at AIWW mile 5.8, in Chesapeake 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 3:30 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draw need not open for the passage of recreational or commercial vessels; except the draw shall open for commercial cargo vessels, including tugs, and tugs with tows, if two hours' advance notice is given to the Gilmerton Bridge at [phone]. At all other times, the draw shall open on signal. The current operating schedule has been in effect since November 17, 2003.

The Gilmerton Bridge Replacement project, which is currently underway since November 2009, will provide a new vertical-lift type bridge over the Southern Branch of the Elizabeth River to replace the existing bridge that was constructed in 1938.

Due to the construction for the new Gilmerton Bridge, vehicular traffic is limited to one lane in each direction and the bridge and approaches have experienced back-ups, delays, and congestion. This temporary change will allow, from June 19, 2011, to December 20, 2013, the draw of the Gilmerton (US13/460) Bridge to open on signal at any time for commercial vessels carrying liquefied flammable gas or other hazardous materials. From 6:30 a.m. to 9:30 a.m. and from 3:30 p.m. to 6:30 p.m., Monday through Friday, except Federal holidays, the draw need not open for the passage of recreational or commercial vessels; except the draw shall open anytime for commercial cargo vessels, including tugs, and tugs with tows, if two hours' advance notice is given to the Gilmerton Bridge at [phone].

From 9:30 a.m. to 3:30 p.m. Monday through Friday and from 6:30 a.m. to 6:30 p.m. Saturdays, Sundays and Federal holidays, the draw shall open on signal hourly on the half hour; except the draw shall open anytime for commercial cargo vessels, including tugs, and tugs with tows, if two hours' advance notice is given to the Gilmerton Bridge at [phone]. At all other times, the draw shall open on signal.

By expanding the morning and evening rush hour periods on the weekdays and implementing scheduled bridge openings between the rush hour periods and on the weekends, we anticipate a decrease in vehicular traffic congestion during the daytime hours.

Concurrent with the publication of the Notice of Proposed Rulemaking (NPRM), a Test Deviation [USCG-2010-0879] has been issued to allow the City to test the proposed schedule and to obtain data and public comments. The test deviation 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 a future regulation will not have a significant impact on navigation. This NPRM has been coordinated with the main commercial waterway user group, specifically, the Virginia Maritime Association who represents waterborne commerce in the Port of Hampton Roads, and there is no expectation of any significant impacts on navigation.

Vessel traffic on this waterway consists of pleasure craft, tug and barge traffic, and ships with assist tugs. There are no alternate routes for vessels transiting this section of the Atlantic Intracoastal Waterway and the drawbridge will be able to open in the event of an emergency.

According to records furnished by the City, there were a total of 6,195 bridge openings and 12,498 vessel passages occurring at the drawbridge between September 2009 and September 2010. (See Table A)

Table A

2009	2009	2009	2009	2010	2010	2010	2010	2010	2010	2010	2010	2010
SEP	OCT	NOV	DEC	JAN	FEB	MAR	APR	MAY	JUN	JUL	AUG	SEP
BRIDGE OPENINGS FOR SEPTEMBER 2009-SEPTEMBER 2010
551	621	549	503	299	284	317	476	639	616	459	365	516
BOAT PASSAGES FOR SEPTEMBER 2009-SEPTEMBER 2010
892	1,858	1,361	645	406	392	478	967	1,770	1,408	791	628	902

Under normal conditions, the Gilmerton (US13/460) Bridge is a vital transportation route for over 35,000 motorists per day. According to recent vehicular traffic counts submitted by the City, the average daily traffic volume decreased at the Gilmerton (US13/460) Bridge to approximately 20,000 cars a day. Due to construction, the I-64 High Rise Bridge is the suggested alternate route for motorists. Even with the alternative vehicular route, the Coast Guard anticipates continued vehicular traffic congestion over the Gilmerton Highway Bridge due to the reduction of highway lanes and anticipates that traffic congestion will subside once the new bridge is completed.

Discussion of Proposed Rule

The Coast Guard proposes to temporarily amend the regulations governing the Gilmerton (US13/460) Bridge at AIWW mile 5.8, in Chesapeake, at 33 CFR 117.997(c), by inserting a new paragraph (j). From June 19, 2010, to December 20, 2013, the draw shall open on signal at any time for commercial vessels carrying liquefied flammable gas or other hazardous materials. From 6:30 a.m. to 9:30 a.m. and from 3:30 p.m. to 6:30 p.m., Monday through Friday, except Federal holidays, the draw need not open for the passage of recreational or commercial vessels; except the draw shall open anytime for commercial cargo vessels, including tugs, and tugs with tows, if two hours' advance notice is given to the Gilmerton Bridge at [phone].

From 9:30 a.m. to 3:30 p.m. Monday through Friday and from 6:30 a.m. to 6:30 p.m. Saturdays, Sundays and Federal holidays, the draw shall open on signal hourly on the half hour; except the draw shall open anytime for commercial cargo vessels, including tugs, and tugs with tows, if two hours' advance notice is given to the Gilmerton Bridge at [phone]. At all other times, the draw shall open on signal.

This temporary change will reduce openings to specific times which will help alleviate traffic congestion on the Gilmerton (US13/460) Bridge and its approaches. The Coast Guard believes that the congestion to vehicular traffic is due to previously referenced vehicular traffic limitations and will subside when construction of the new bridge is completed.

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 proposed changes are expected to 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 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 affect the following entities, some of which might be small entities: Owners and operators of vessels other than certain commercial cargo vessels needing to transit the bridge. 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, by expanding the morning and evening rush hour periods on the weekdays and implementing scheduled bridge openings between the rush hour periods and on the weekends. 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 Guard District, [phone]. 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. From June 19, 2010, to December 20, 2013, in § 117.997, suspend paragraph (c) and temporarily add a new paragraph (j) to read as follows:

§ 117.997

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

* * * * *

(j) The draw of the Gilmerton (US13/460) Bridge, mile 5.8, in Chesapeake:

(1) Shall open on signal at any time for commercial vessels carrying liquefied flammable gas or other hazardous materials.

(2) From 6:30 a.m. to 9:30 a.m. and from 3:30 p.m. to 6:30 p.m., Monday through Friday, except Federal holidays:

(i) Need not open for the passage of recreational or commercial vessels that do not qualify under paragraph (j)(2)(ii) of this section.

(ii) Need not open for commercial cargo vessels, including tugs, and tugs with tows, unless 2 hours' advance notice has been given to the Gilmerton Bridge at [phone].

(3) From 9:30 a.m. to 3:30 p.m. Monday through Friday and from 6:30 a.m. to 6:30 p.m. Saturdays, Sundays and Federal holidays, the draw need only be opened every hour on the half hour, except the draw shall open on signal for commercial vessels that qualify under paragraphs (j)(1) and (j)(2)(ii) of this section.

(4) Shall open on signal at all other times.

Dated: November 2, 2010.

Patrick B. Trapp,

Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard District.