2011-14824. Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Elizabeth River, Southern Branch, Chesapeake, VA

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is temporarily changing the drawbridge operation regulations 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. This change will allow adjustments and set opening periods for the bridge during the day until December 20, 2013, relieving vehicular traffic congestion during the weekday and weekend daytime hours while still providing for the reasonable needs of navigation.

DATES:

This rule is effective from 9 a.m. on June 19, 2010 until 6:30 p.m. on December 20, 2013.

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-2010-0879 and are available online by going to http://www.regulations.gov,, inserting USCG-2010-0879 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 Waverly W. Gregory, Jr., Bridge Program Manager, Fifth Coast Guard District, at 757-398-6222. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On November 16, 2010, we published a notice of temporary deviation request for comments entitled “Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Elizabeth River, Southern Branch, VA” in the Federal Register (75 FR 69879) and a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Elizabeth River, Southern Branch, VA” in the Federal Register (75 FR 69906). We received seven comments on the published deviation and NPRM. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register. Making this rule effective in less than 30 days is necessary in order to continue the construction of the new Gilmerton Bridge Replacement Project without disruption. Additionally, delaying this final temporary could result in additional vehicular traffic congestion without providing any additional benefit to vessel traffic.

Background 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 Title 33 CFR Part 117.997(c), requires the Gilmerton (US13/460) Bridge, at AIWW mile 5.8, in Chesapeake to open on signal at anytime 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 continue to allow, from June 19, 2011, to December 20, 2013, the draw of the Gilmerton (US13/460) Bridge to open on signal at anytime for commercial vessels carrying liquefied flammable gas or other hazardous materials, and at anytime for commercial cargo vessels, including tugs, and tugs with tows, if two hours advance notice is given to the Gilmerton Bridge at [phone], but will extend by one-hour; 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 time each day when the draw need not open for the passage of recreational or commercial vessels.

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 anticipated 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] was issued to allow the City to test the proposed schedule and to obtain data and public comments. The test deviation 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 ensure a future regulation would not have a significant impact on navigation. The NPRM was 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 was 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	1858	1361	645	406	392	478	967	1770	1408	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 Comments and Changes

The Coast Guard received seven responses to the NPRM including two comments from the same respondent. Six comments were submitted online to http://www.regulations.gov,, with one remark forwarded by e-mail.

The respondents, all mariners, expressed the following remarks and recommendations:

The first comment recommended operating procedures for inclusion in the regulatory language. The suggestions offered are the following:

1. If any vessel is approaching the bridge and cannot reach the draw exactly on the half hour, the draw tender may delay the opening up to 10 minutes past the half hour for passage of the approaching vessel and any other vessels that are waiting to pass.

The Coast Guard considered the proposal reasonable and will add the suggestion to the final rule.

2. If Norfolk & Southern Railroad Bridge #7 adjacent to Gilmerton Bridge is closed at the time of a scheduled opening AND a vessel(s) is waiting that requires opening of the Gilmerton Bridge, the Gilmerton Bridge shall open as soon as Railroad Bridge #7 opens, to allow passage of the vessel(s) waiting from the scheduled opening time. Any other vessels that may have accumulated can pass through with the original vessel(s) that was delayed.

For these situations, the Coast Guard will make the following changes: If the Norfolk & Southern Railroad Bridge #7, at mile 5.8, is not opened during a particular scheduled opening for the Gilmerton Bridge and vessels were delayed, the draw tender at the Gilmerton Bridge may provide a single opening for waiting vessels once the Norfolk & Southern Railroad Bridge #7 reopens for vessels.

The second and third comments were opposed to the temporary regulations and suggested that the drawbridge opening restrictions during the weekday (between 6:30 a.m. to 9:30 a.m.) include one opening for vessels at 8:30 a.m. in order to coincide with the operation of the Dominion Boulevard (US 17) Bridge located across the Southern Branch of the Elizabeth River at AIWW mile 8.8 in Chesapeake VA. Both mariners stated in some measure that: In this way, Belhaven NC, which is approximately 135 miles from Norfolk VA, can be reached. Transiting through at 9:30 a.m. adds an extra day to the trip.

The Coast Guard does not believe that this request is reasonable since purpose of the test deviation and temporary regulations is to help reduce vehicle traffic congestion on the bridge during daytime hours, while providing for the reasonable needs of navigation during the construction of the new Gilmerton Bridge Replacement Project. The addition of a bridge opening at 8:30 would significantly disrupt vehicular traffic during “rush hour” without a corresponding benefit to vessel traffic. Further this is only a temporary change and once the new bridge is completed, the existing operating regulations, set out 33 CFR 117.997(c), will be reinstated.

The fourth comment disagreed with making the proposed bridge opening schedules permanent at this time and requested waiting to see how the traffic flows after the construction is completed. The fifth comment suggested that “We change the operation of the Dominion Boulevard (US 17) Bridge to open for vessels on the half-hour instead of on the hour and change the operation of the Gilmerton Bridge to open for vessels on the hour, because the Great Bridge locks and the Dominion Boulevard Bridge both open on the hour costing vessel traffic an extra hour. Even sailboats could make both bridges and the locks on the suggested schedule, saving congestion and fuel”.

For these comments, the Coast Guard responds by stating that this change is only temporary and will allow adjustments and set opening periods for the bridge to vessels during the day to continue from June 19, 2011 until December 20, 2013. At 6:30 p.m. on December 20, 2013, the temporary regulations will end and the existing operating regulations will be reinstated.

The sixth and seventh comments were submitted by the same respondent. This commenter is opposed to the temporary regulations, the delayed operation of the adjacent Norfolk & Southern Railway Bridge, and the ineffective operating staff at the Gilmerton Bridge.

For these comments, the Coast Guard again responds by stating that this change is only temporary and will allow adjustments and set opening periods for the bridge to vessels during the day to continue from June 19, 2011 until December 20, 2013. At 6:30 p.m. on December 20, 2013, the temporary regulations will end and the existing operating regulations, set out 33 CFR 117.997(c), will be reinstated.

In addition, there are general penalty procedures to facilitate the safe passage of vessels through bridges by deterring any inconvenience or impediment to navigation which may result from the ineffective operation of bridges across navigable waters of the United States. Complainants should forward a report of alleged violations to the district Bridge Program Manager who conducts an investigation to determine if there is sufficient evidence to establish a “prima facie” case. If the material then available indicates that there is not a prima facie case, yet a violation appears imminent, the district Bridge Program Manager may issue a cautionary notice by letter or telephone. If it is determined that a prima facie case does exist, a case file is prepared and forwarded to the Hearing Officer, with a recommended action.

The Coast Guard reviewed the bridge data supplied by the Virginia Department of Transportation (VDOT). The City gathered data during the month of April 2011 to analyze the effect of the temporary deviation on roadway and maritime traffic. According to the City, April was chosen as it falls during the “snowbird season”, when maritime traffic is at its peak. The test regulations had been in effect for three months, providing roadway and maritime traffic time to adjust to the new test regulations. The data was compared to data from April 2010. In summary, the data showed that in April 2011 the bridge made on average 0.7 fewer bridge lifts per day during morning rush hour restrictions (6:30 a.m. to 9:30 a.m.), 1.3 fewer lifts per day during the 9:30 a.m. to 3:30 p.m. timeframe, and 1.7 fewer lifts during the evening rush hour restrictions (3:30 p.m. to 6:30 p.m.).

Vehicular traffic count information, from the VDOT count station on Military Highway near Shell Road, showed an average daily traffic count of 24,717 vehicles crossing the structure during the weekdays in April 2011. This is an increase of approximately 4,700 vehicles per day crossing the bridge since the test regulations went into effect. In conclusion, the test regulation appears to be reducing the number of bridge openings during the weekdays, allowing more vehicles to cross the bridge, and therefore helping to reduce vehicular traffic congestion in the area. The test regulation also appears to be having a minimal impact on maritime traffic. The City would like to continue to institute this temporary regulation until construction on the new Gilmerton Bridge is completed sometime in 2013.

Based on the information provided, we will implement a final rule with minimal changes to the NPRM.

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, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We reached this conclusion based on the fact that the 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 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. This rule will 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 rule will 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 by one hour on the weekdays and implementing scheduled bridge openings between the rush hour periods on weekdays and on the weekends. Mariners who plan their transits in accordance with the scheduled bridge openings can minimize delay.

We received comments about delay issues and have determined that a 10-minute delay of the opening for vessels that are unable to make the half-hour opening is reasonable. In addition, for those vessels whose transit is delayed due to an opening of the Norfolk & Southern Railroad Bridge #7, the Gilmerton (US13/460) Bridge drawtender may provide a single opening after the Norfolk & Southern Railroad Bridge #7 reopens such that those vessels may continue their transit without further delay.

Though two comments were received regarding vessel transit time to Belhaven, NC: (i) This change is only temporary; (ii) this change only adds one hour in the morning and one hour in the evening when the draw need not open for recreational and some commercial vessels; (iii) mariners may pre-plan their trips in accordance with this regulation; (iv) this regulation has been tested for approximately the past three months, thereby providing additional notice to mariners and providing a time-period for them to acquaint themselves with any necessary scheduling alterations for their planned trips; and (v) this change is meant to assist with better facilitating rush hour vehicular traffic for the approximately 20,000 vehicles transiting the bridge while not unreasonably interfering with maritime transiting.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), 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 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 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 as this rule is related to the promulgation of operating regulations or procedures for drawbridges.

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

For the reasons discussed in the preamble, the Coast Guard amends 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, 2011, 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) If any vessel is approaching the bridge and cannot reach the draw exactly on the half hour per paragraph (j)(3) of this section, the draw tender may delay the opening up to 10 minutes past the half hour for passage of the approaching vessel and any other vessels that are waiting to pass.

(5) If the Norfolk & Southern Railroad Bridge #7, at mile 5.8, is not opened during a particular scheduled opening for the Gilmerton Bridge and vessels were delayed, the draw tender at the Gilmerton Bridge may provide a single opening for waiting vessels, once the Norfolk & Southern Railroad Bridge #7 reopens for vessels.

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

Dated: June 2, 2011.

William D. Lee,

Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.