E9-14772. Drawbridge Operation Regulation; Pamunkey River, West Point, VA

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is changing the drawbridge operation regulations of the Eltham Bridge (SR33/30), at mile 1.0, across Pamunkey River at West Point, Virginia. This final rule will allow the bridge to open on signal if at least four hours notice is given at all times while still providing for the reasonable needs of navigation, due to the anticipated infrequency of requests for vessel openings of the drawbridge.

DATES:

This rule is effective July 24, 2009.

ADDRESSES:

Comments and materials received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2009-1175 and are available online by going to www.regulations.gov,, selecting the Advanced Docket Search option on the right side of the screen, inserting USCG-2009-1175 in the Docket ID box, pressing Enter, and then clicking on the item in the Docket ID column. 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 or e-mail Sandra S. Elliott, Bridge Management Specialist, Fifth Coast Guard District, at [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operation, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On March 12, 2009, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulations; Pamunkey River, West Point, VA” in the Federal Register (74 FR 10692). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Background and Purpose

The Virginia Department of Transportation (VDOT) is responsible for the operation of the Eltham Bridge (SR33/30), at mile 1.0, across Pamunkey River at West Point, VA. VDOT requested that the Coast Guard consider a four hour advance notification for vessel openings due to the infrequency of requests for vessel openings of the drawbridge.

The new Eltham bascule bridge has recently been completed and is located immediately adjacent and downstream from the former structure. The former bridge provided 10 feet of vertical clearance over the navigable channel. The new bridge provides an additional 45 feet of vertical clearance over the navigable channel. The increase in vertical clearance has eliminated the need to open on demand for all existing commercial traffic and it is anticipated that there will be very few requests other than for scheduled monthly maintenance openings.

The existing operating regulation is set out in 33 CFR § 117.1023, which requires the draw to open on signal, except that the bridge need not open for commercial crabbing and fishing vessels and recreational vessels on Mondays through Fridays, except Federal Holidays, from 7 a.m. to 9 a.m., 12 noon to 1 p.m. and 4 p.m. to 6 p.m., at all other times, the bridge will open for these vessels only on the hour, Monday through Friday, except Federal holidays; and Public vessels of the United States must pass at any time.

Bridge opening data, supplied by VDOT, revealed a significant decrease in yearly openings. In the past three years from 2005 to 2007, the bridge opened for vessels 593, 415 and 187 times, respectively. Due to the anticipated infrequency of requests for vessel openings of the drawbridge, VDOT requested to change the current operating regulation by requiring the draw of the bridge to open on signal if at least four hours notice is given year-round.

Discussion of Comments and Changes

The Coast Guard did not receive any comments on the NPRM. Therefore, no changes were made to the final rule.

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 rule to be so minimal that a full Regulatory Evaluation is unnecessary. This conclusion is based on the fact that the changes have only a minimal impact on maritime traffic transiting the bridge. Mariners can plan their trips in accordance with the proposed 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: The owners and operators of vessels needing to transit the bridge who can not clear the bridge at its closed position. 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 vessels, and mariners who plan their transits in accordance with the proposed scheduled bridge openings can minimize delay.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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 will not effect 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 does not create an environmental risk to health or risk to safety that may 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 does 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.lD which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded 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

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. Revise § 117.1023 to read as follows:

§ 117.1023

Pamunkey River

The draw of the Eltham Bridge (SR33/30) mile 1.0, located in West Point, Virginia shall open on signal if at least four hours notice is given at all times.

Dated: June 10, 2009.

Fred M. Rosa, Jr.,

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