
[Federal Register: March 13, 2009 (Volume 74, Number 48)]
[Proposed Rules]               
[Page 10850-10853]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13mr09-11]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2009-0073]
RIN 1625-AA09

 
Drawbridge Operation Regulation; Perquimans River, Hertford, NC

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to change the drawbridge operation 
regulations of the US17 Bridge, at mile 12.0, across Perquimans River 
at Hertford, NC. This proposal would allow the drawbridge to operate on 
an advance notice basis during specific times of the year. The proposed 
change would result in more efficient use of the bridge during months 
of infrequent transit.

DATES: Comments and related material must reach the Coast Guard on or 
before April 27, 2009.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number USCG-2009-0073 to the Docket Management Facility at the U.S. 
Department of Transportation. To avoid duplication, please use only one 
of the following methods:
    (1) Online: http://www.regulations.gov.
    (2) 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.
    (3) Hand delivery: Room W12-140 on the Ground Floor of the West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    (4) Fax: 202-493-2251.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call Sandra S. Elliott, Bridge

[[Page 10851]]

Management Specialist, Fifth Coast Guard District, at (757) 398-6557. 
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 materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided. We have an agreement with the 
Department of Transportation (DOT) to use the DocketManagement 
Facility. Please see DOT's ``Privacy Act'' paragraph below.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0073), indicate the specific section of this 
document to which each comment applies, and give the reason for each 
comment. 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. 
You may submit your comments and material by electronic means, mail, 
fax, or delivery to the Docket Management Facility at the address under 
ADDRESSES; but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
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. We may change this 
proposed rule in view of them.

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 at 
any time. Enter the docket number for this rulemaking (USCG-2009-0073) 
in the Search box, and click ``Go>>.'' You may also visit either the 
Docket Management Facility in Room W12-140 on the ground floor of the 
DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays or at Commander (dpb), Fifth Coast Guard District, Federal 
Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 233704-5004 
between 8 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays.

Privacy Act

    Anyone can search the electronic form of all 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 the Department of 
Transportation's Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477), or you may visit http://
DocketsInfo.dot.gov.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining 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

    The North Carolina Department of Transportation (NCDOT) is 
responsible for the operation of the US17 Bridge, at mile 12.0, across 
Perquimans River at Hertford, NC. NCDOT requested advance notification 
for vessel openings during specific times of the year due to the 
infrequency of requests for vessel openings of the drawbridge.
    The US17 Bridge has a vertical clearance of three feet above mean 
high water in the closed-to-navigation position. The existing operating 
regulation is set out in 33 CFR 117.835, which requires the draw to 
open on signal from 8 a.m. to midnight from April 1 through September 
30, and from 10 a.m. to 10 p.m. from October 1 through March 31. The 
draw need not be opened at all other times.
    Bridge opening data, supplied by NCDOT, revealed a significant 
decrease in yearly openings. In the past three years from 2006 to 2008, 
the bridge opened for vessels 363, 451 and 266 times, respectively. 
(See Table A)

Table A

                                            Bridge Openings for 2006
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   JAN       FEB       MAR       APR       MAY       JUN      JUL      AUG      SEPT     OCT      NOV      DEC
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    15         4        12        18        59        46        59       37       39       23       35       16
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                                            Bridge Openings for 2007
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   JAN       FEB       MAR       APR       MAY       JUN      JUL      AUG      SEPT     OCT      NOV      DEC
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    12        10        14        18        34        79        94       50       45       42       17       36
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                                            Bridge Openings for 2008
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   JAN       FEB       MAR       APR       MAY       JUN      JUL      AUG      SEPT     OCT      NOV      DEC
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     9        12        22        26        13        23        76       18       26       20       14        7
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    Most of the businesses that previously brought materials in via 
barges through this drawbridge have ceased to operate or they are 
utilizing different forms of transportation to move their materials. As 
such, this dramatic decrease in waterway traffic has resulted in much 
less frequent openings of the draw itself.
    Due to the anticipated infrequency of requests for vessel openings 
of the drawbridge, NCDOT requested to change the current operating 
regulation

[[Page 10852]]

by requiring the draw of the bridge to open on signal from May 1 to 
September 30 from 8 a.m. to 10 p.m., and from October 1 to April 30 
from 10 a.m. to 8 p.m., if two hours notice is given. The draw need not 
be opened at all other times.

Discussion of Proposed Rule

    The Coast Guard proposes to amend 33 CFR 117.835, by revising the 
paragraph to read that the draw of the US17 bridge, mile 12.0 at 
Hertford, NC, shall open on signal from 8 a.m. to 10 p.m. from May 1 
through September 30; and from 10 a.m. to 8 p.m. from October 1 through 
April 30, if two hours notice is given. The draw need not be opened at 
all other times.

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.
    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 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 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 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, and mariners who 
plan their transits in accordance with the proposed 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, (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 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 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

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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 0023.1 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 is one of a category of 
actions which do not individually or cumulatively have a significant 
effect on the human environment. Therefore, this rule is categorically 
excluded, under section 2.B.2. Figure 2-1, paragraph 32(e), of the 
Instruction 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. Revise Sec.  117.835 to read as follows:


Sec.  117.835  Perquimans River

    The draw of the US17 Bridge, mile 12.0, at Hertford, NC shall open 
on signal from 8 a.m. to 10 p.m. from May 1 through September 30; and 
from 10 a.m. to 8 p.m. from October 1 through April 30, if two hours 
notice is given. The draw need not be opened at all other times.

    Dated: February 17, 2009.
Fred M. Rosa, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
 [FR Doc. E9-5408 Filed 3-12-09; 8:45 am]

BILLING CODE 4910-15-P
