[Federal Register Volume 69, Number 166 (Friday, August 27, 2004)]
[Proposed Rules]
[Pages 52617-52620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19564]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-04-117]
RIN 1625-AA09


Drawbridge Operation Regulations; Atlantic Intracoastal Waterway, 
Elizabeth River (Southern Branch), VA

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 Norfolk Southern 7 Railroad Bridge across 
the Southern Branch of the Elizabeth River at Atlantic Intracoastal 
Waterway mile 5.8, in Chesapeake, Virginia. The proposed rule would 
increase vessel openings and eliminate the need for a bridge tender by 
allowing the bridge to be operated from a remote location. This change 
will provide for the reasonable needs of navigation.

DATES: Comments and related material must reach the Coast Guard on or 
before October 26, 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 telephone number is (757) 398-
6222. 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: Bill Brazier, Bridge Management 
Specialist, Fifth Coast Guard District, at (757) 398-6422.

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-
117), 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 them.

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

    Norfolk Southern Corporation (NSC) requested a change to the 
current operating regulation set out in 33 CFR Part 117.5 that requires 
the drawbridge to open promptly and fully for the passage of vessels 
when a request to open is given.
    NSC proposes to remotely control the opening and closing of the 
Norfolk Southern (NS) 7 Railroad Bridge across the Southern 
Branch of the Elizabeth River at Atlantic Intracoastal Waterway

[[Page 52618]]

(AICW) mile 5.8 in Chesapeake, Virginia, by the remote operator at the 
NS 5 Railroad Bridge, across the Eastern Branch of the 
Elizabeth River, at mile 1.1, in Norfolk, Virginia. NSC installed a 
Programmable Logic Controller and associated mechanical, electrical and 
signal apparatus on the drawbridge. NSC 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 NS 5 Railroad Bridge office, in Norfolk, 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. NS 
has also installed additional safety warning lights to the bridge for 
the remote operation.
    This change is being requested to make the closure process of the 
NS 7 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 amend the regulations governing the NS 
7 Railroad Bridge across the Southern Branch of the Elizabeth 
River, at AICW mile 5.8, which currently opens on signal. The Coast 
Guard proposes to insert this new specific regulation at 33 CFR 
117.997(e).
    A new paragraph (e) would contain the proposed rule for the NS 
7 Railroad Bridge, at AICW mile 5.8, in Chesapeake. The rule 
would allow the drawbridge to be remotely controlled by the off-site 
remote operator at the NS 5 Railroad Bridge office across the 
Eastern Branch of the Elizabeth River, at mile 1.1, in Norfolk. The 
drawbridge would be left in the open position to vessels and would only 
close for the passage of trains and to perform periodic maintenance 
authorized in accordance with subpart A of part 117.
    Before the NS 7 Railroad Bridge closes for any reason, the 
remote operator will monitor waterway traffic in the area with closed 
circuit cameras and motion sensors mounted on the bridge. The bridge 
would only be closed if the off-site remote operator's visual 
inspection shows that the channel is clear and there are no vessels 
transiting in the area.
    While the NS 7 Railroad Bridge is moving from the full 
open position to the full closed position, the off-site remote operator 
will maintain constant surveillance of the navigation channel to ensure 
that no conflict with maritime traffic exists. In the event of failure 
or obstruction, the off-site remote operator will stop and return the 
bridge to the full open position to vessels. In these situations, a 
bridge tender must be called and on-site within 30 minutes to operate 
the bridge.
    During span movement, the channel traffic lights would change from 
flashing green to flashing red, the horn will sound twice, and an audio 
voice warning device will announce bridge movement, then two repeat 
blasts of the horn until the bridge is seated and locked down. When the 
bridge is seated and locked down to vessels, the channel traffic lights 
will flash red.
    When the rail traffic has cleared, the horn will automatically 
sound five times to indicate that the draw of the NS 7 
Railroad Bridge is about to return to its full open position to 
vessels. During the open span movement, the channel traffic lights 
would flash red, the horn will sound twice, followed by a pause, and 
then five repeat blasts of the horn until the bridge is in the full 
open position to vessels. In the full open position to vessels, the 
bridge channel traffic lights will turn from flashing red to flashing 
green then an audio warning device will announce bridge movement by 
stating ``Security, security, security, the NS 7 Railroad 
Bridge at mile 5.8 is open for river traffic''. After the train has 
cleared the bridge by leaving the track circuit, any delay in opening 
of the draw to vessels shall not exceed ten minutes except as provided 
in 33 CFR 117.31(b). Operational information will be provided 24 hours 
a day on marine channel 13 and via telephone (757) 924-5320.
    The Coast Guard proposes to revise Sec.  117.997 by redesignating 
paragraphs (e) through (i) and inserting a new paragraph (e). Text 
modifications to be consistent with other proposed changes will be made 
in these paragraphs, as appropriate.

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 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 for the NS 7 Railroad 
Bridge regulation will provide for greater flow of vessel traffic than 
the current regulations of the drawbridge.
    Under the current regulations, the NS 7 Railroad Bridge 
remains closed and opens only on signal to vessels. The proposed 
regulation will require the bridge to remain in the open position 
permitting vessels to pass freely. The bridge will close only for train 
crossings and bridge maintenance. This proposed regulation will provide 
for the reasonable needs of navigation.

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 will provide for the NS 7 Railroad Bridge to remain in 
the open position, allowing for the free flow of vessel traffic. The 
bridge would only close for the passage of trains and 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

[[Page 52619]]

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 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.

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.  117.997, redesignate paragraphs (e) through (i) as 
paragraphs (f) through (j) respectively, and add a new paragraph (e) to 
read as follows:


Sec.  117.997  Atlantic Intracoastal Waterway, South Branch of the 
Elizabeth River to the Albemarle and Chesapeake Canal.

* * * * *
    (e) The draw of the Norfolk Southern 7 Railroad Bridge, 
mile 5.8 in Chesapeake, shall operate as follows:
    (1) The draw shall be remotely controlled by the operator at the 
Norfolk Southern 5 Railroad Bridge office over the Eastern 
Branch of the Elizabeth River, at mile 1.1, in Norfolk.
    (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 Sec.  
117.31(b).
    (4) Before the bridge closes for any reason, the off-site remote 
operator will monitor waterway traffic in the area with closed circuit 
cameras and motion sensors mounted on the bridge. The bridge would only 
be closed if the off-site remote operator's visual inspection shows 
that the channel is clear and there are no vessels transiting in the 
area.
    (5) While the bridge is moving from the full open position to the 
full closed position, the off-site remote operator will maintain 
constant surveillance of the navigation channel to ensure that no 
conflict with maritime traffic exists. In the event of failure or 
obstruction, the off-site remote operator will stop and return the 
bridge to the full open position to vessels. In these situations, a 
bridge tender must be called and on-

[[Page 52620]]

site within 30 minutes to operate the bridge.
    (6) During closing of the span, the channel traffic lights would 
change from flashing green to flashing red, the horn will sound twice, 
and an audio voice warning device will announce bridge movement, then 
two repeat blasts of the horn until the bridge is seated and locked 
down. When the bridge is seated and locked down to vessels, the channel 
traffic lights will flash red.
    (7) During the open span movement, the channel traffic lights would 
flash red, the horn will sound twice, followed by a pause, and then 
five repeat blasts of the horn until the bridge is in the full open 
position to vessels. In the full open position to vessels, the bridge 
channel traffic lights will turn from flashing red to flashing green 
then an audio warning device will announce bridge movement by stating 
``Security, security, security, the Norfolk Southern 7 
Railroad Bridge at mile 5.8 is open for river traffic''.
    (8) Operational information will be provided 24 hours a day on 
marine channel 13 and via telephone (757) 924-5320.
* * * * *

    Dated: August 18, 2004,
Ben R. Thomason, III,
Captain, U. S. Coast Guard, Acting Commander, Fifth Coast Guard 
District.
[FR Doc. 04-19564 Filed 8-26-04; 8:45 am]
BILLING CODE 4910-15-P