[Federal Register Volume 69, Number 149 (Wednesday, August 4, 2004)]
[Proposed Rules]
[Pages 47045-47047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17685]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-04-120]
RIN 1625-AA09


Drawbridge Operation Regulations; Northeast Cape Fear River, 
Wilmington, NC

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to change the regulations that govern 
the operation of the CSX Transportation (CSX) Hilton Railroad Bridge 
across the Northeast Cape Fear River, at mile 1.5, in Wilmington, NC. 
The proposed rule would eliminate the need for a bridge tender by 
allowing the bridge to be operated from a remote location. This 
proposed change would maintain the bridge's current level of 
operational capabilities and continue providing for the reasonable 
needs of rail transportation and vessel navigation.

DATES: Comments and related material must reach the Coast Guard on or 
before October 4, 2004.

ADDRESSES: You may mail comments and related material to Commander 
(obr), Fifth Coast Guard District, Federal Building, 4th Floor, 431 
Crawford Street, Portsmouth, Virginia 23704-5004, or they may be hand 
delivered to the same address between 8 a.m. and 4 p.m., Monday through 
Friday, except Federal Holidays. The Commander (obr), Fifth Coast Guard 
District maintains the public docket for this rulemaking. Comments and 
material received from the public, as well as documents indicated in 
this preamble as being available in the docket, will become part of 
this docket and will be available for inspection or copying at the 
above address.

FOR FURTHER INFORMATION CONTACT: Terrance Knowles, Environmental 
Protection Specialist, Fifth Coast Guard District, at (757) 398-6587.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking CGD05-04-
120, indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying. If you would like to know 
they reached us, 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 those 
comments.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to the Commander, Fifth Coast Guard 
District 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

    CSX, who owns and operates this movable (bascule type) bridge, 
requested changes to the operating procedures for the drawbridge 
located at mile 1.5 across the Northeast Cape Fear River, in 
Wilmington, NC. The vertical clearance under CSX Hilton Railroad Bridge 
in the closed position to vessels is 9 feet at mean low water and 6 
feet at mean high water. The existing regulation listed at 33 CFR 117.5 
requires the bridge to open on signal.
    CSX will remotely operate the opening and closing of the CSX Hilton 
Railroad Bridge across Northeast Cape Fear River in Wilmington, NC, 
from the nearby CSX Navassa Railroad Bridge located on the Cape Fear 
River. CSX has installed motion sensors, laser scanners and high-
resolution video cameras on the bridge to enhance the remote operator's 
ability to monitor and control the equipment. The CSX Navassa Railroad 
Bridge is also equipped with an amplified open-mike from the bridge to 
enable the remote operator to hear boat horns that may signal for an 
opening. CSX has also installed additional safety warning lights to the 
bridge for the remote operation. This rule proposes to allow the bridge 
to be untended and operated from a remote location at the CSX Navassa 
Railroad Bridge. The CSX Hilton Railroad Bridge will normally be left 
in the fully open position displaying flashing green channel lights 
indicating that vessels may pass through.
    This change is being requested to make the closure process of the 
Hilton Railroad Bridge more efficient. It will save operational costs 
by eliminating bridge tenders, and is expected to decrease maintenance 
costs. In addition, the draw being left in the open position most of 
the time will provide for greater flow of vessel traffic than the 
current regulation.

Discussion of Proposed Rule

    The Coast Guard proposes to revise 33 CFR 117.829 by redesignating 
paragraph (b) and inserting a new paragraph (c).
    Paragraph (b) would contain the proposed rule for the CSX Hilton 
Railroad Bridge, mile 1.5, in Wilmington, NC. The rule would allow the 
draw of the bridge to be operated by the controller at the CSX Navassa 
Railroad Bridge.
    In the event of failure or obstruction of the motion sensors, laser 
scanners, video cameras or marine-radio communications, the CSX Hilton 
Railroad Bridge shall not be operated from the remote location. In 
these situations, a bridge tender must be called to operate the bridge 
on-site.
    The draw shall remain in the open position for navigation and shall 
only be closed for train crossings or periodic maintenance. When rail 
traffic has cleared, the horn will automatically sound one prolonged 
blast followed by one short blast to indicate that the CSX Hilton 
Railroad Bridge is moving to the full open position to vessels. During 
open span movement, the channel traffic lights will flash red, until 
the bridge is in the full open position to vessels. In the full open 
position to vessels, the bridge channel traffic lights will flash 
green. After the train has cleared the bridge by leaving the track 
circuit, the opening of the draw to vessels shall not exceed ten 
minutes except as provided in 33 CFR 117.31(b).
    During closing span movement, the channel traffic lights will flash 
red, the horn will sound five short blasts, an audio voice warning 
device will announce bridge movement. Five short blasts of the horn 
will continue until the bridge is seated and locked down. When the 
bridge is seated and locked down to vessels, the channel traffic lights 
will continue to flash red.
    Paragraph (c) would contain the existing regulations for the 
Seaboard System Railroad Bridge across the Northeast Cape Fear River, 
mile 27.0 at Castle Hayne, North Carolina.

Regulatory Evaluation

    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. It is not ``significant'' 
under the regulatory

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policies and procedures of the Department of Homeland Security (DHS).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS 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. Although the CSX Hilton 
Railroad Bridge will be untended and operated from a remote location, 
mariners can continue their transits because the bridge will remain 
open to mariners, only to be closed for train crossing or periodic 
maintenance.

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 for the following reasons. The 
rule allows the CSX Hilton Railroad Bridge to operate remotely and 
requires the bridge to remain in open position to vessels the majority 
of the time, only closing for train crossing or periodic maintenance.
    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 process. 
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.

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 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 would not result in such an 
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 security 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 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 there are no factors in this case that would limit the 
use of a categorical exclusion under section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1, 
paragraph (32)(e) of the Instruction, from further environmental 
documentation because it has been determined that the promulgation of

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operating regulations for drawbridges are categorically excluded.

List of Subjects in 33 CFR Part 117

    Bridges.

Regulations

    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; Department of Homeland Security 
Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued 
under the authority of Pub. L. 102-587, 106 Stat. 5039.

    2. In Sec.  117.829, redesignate paragraph (b) as paragraph (c) and 
add a new paragraph (b) to read as follows:


Sec.  117.829  Northeast Cape Fear River.

    (a) * * *
    (b) The CSX Hilton Railroad Bridge, mile 1.5 in Wilmington, NC 
shall operate as follows:
    (1) The draw of the bridge to be remotely operated by the 
controller at the Navassa Railroad Bridge mile 34.0 across the Cape 
Fear River.
    (2) The draw shall be left in the open position to vessels and will 
only be closed for the passage of trains and to perform periodic 
maintenance authorized in accordance with Subpart A of this part.
    (3) Trains shall be controlled so that any delay in opening of the 
draw shall not exceed ten minutes except as provided in 117.31(b).
    (4) The CSX Hilton Railroad Bridge shall not be operated by the 
controller at the CSX Navassa Railroad in the event of failure or 
obstruction of the motion sensors, laser scanners, video cameras or 
marine-radio communications. In these situations, a bridge tender must 
be called to operate the bridge on-site.
    (5) When rail traffic has cleared, the horn will automatically 
sound one prolonged blast followed by one short blast to indicate that 
the CSX Hilton Railroad Bridge is moving to the full open position to 
vessels. During open span movement, the channel traffic lights will 
flash red, until the bridge is in the full open position to vessels. In 
the full open position to vessels, the bridge channel traffic lights 
will flash green, allowing vessels to pass safely.
    (6) During closing span movement, the channel traffic lights will 
flash red, the horn will sound five short blasts, and an audio voice-
warning device will announce bridge movement. Five short blasts of the 
horn will continue until the bridge is seated and locked down. When the 
bridge is seated and in the locked down position to vessels, the 
channel traffic lights will continue to flash red.
* * * * *

    Dated: July 12, 2004.
Sally Brice-O'Hara,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 04-17685 Filed 8-3-04; 8:45 am]
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