[Federal Register Volume 69, Number 231 (Thursday, December 2, 2004)]
[Proposed Rules]
[Pages 70091-70094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26520]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-04-209]
RIN 1625-AA09


Drawbridge Operation Regulations; Elizabeth River-Eastern Branch, 
Norfolk, 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 (NS) Railroad Bridge (NS 
V2.8) across Eastern Branch of the Elizabeth River, at mile 
2.7, in Norfolk, VA. The proposed change would allow the NS 
V2.8 bridge to be operated from a remote location, and to be 
operated from a remote location, and to remain open for vessel traffic 
and only close for train crossings and periodic maintenance. This 
proposed rule would make the operation of the bridge more efficient, 
because currently the bridge only opens on signal, or on signal after 
notice.

DATES: Comments and related material must reach the Coast Guard on or 
before January 18, 2005.

ADDRESSES: You may mail comments and related material to Commander 
(obr), Fifth Coast Guard District, Federal Building, 1st Floor, 431 
Crawford Street, Portsmouth, VA 23704-5004. The Fifth

[[Page 70092]]

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 Commander (obr), Fifth Coast Guard District between 8 a.m. 
and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Anton Allen, Bridge Management 
Specialist, Fifth Coast Guard District, at (757) 398-6227.

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-
209, 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 a return 
receipt, please enclose a stamped, self-addressed postcard or envelope. 
We will consider all submittals 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 Commander (obr), 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 public meeting at a time and place announced by a later notice 
in the Federal Register.

Background and Purpose

    Norfolk Southern Corporation (NSC), who owns and operates this 
swing-type bridge at mile 2.7 across the Eastern Branch of the 
Elizabeth River, in Norfolk, VA, requested a change to the current 
operating procedures set out in 33 CFR 117.1007(a), which requires the 
draw to open on signal, from 6 a.m. to 10 p.m., and open on signal with 
at least two hours notice, from 10 p.m. to 6 a.m. This proposed rule 
would allow the NS Railroad Bridge (NS V2.8) to remain open to 
vessel traffic and to close only for train crossings and periodic 
maintenance. This proposed rule would also allow the NS Railroad Bridge 
(NS V2.8) to be operated from a remote location at the NS 
Railroad Bridge (NS 5), at mile 1.1, over the Eastern Branch 
of the Elizabeth River.
    NSC has installed closed circuit cameras in the area of the bridge 
and directly beneath the bridge, mounted on the center pier fender 
systems on both sides. Infrared sensors have also been installed to 
cover the swing radius of the bridge. This equipment enhances the 
controller's ability to monitor vessel traffic from the remote 
location. The controller will also monitor marine channel 13.
    This change is being requested to make the operation of the NS 
Railroad Bridge (NS V2.8) more efficient. It will save 
operational costs by eliminating the continuous presence of bridge 
tenders, and is expected to decrease maintenance costs. In addition, 
the draw being left in the open position and only closing for train 
crossings or periodic maintenance 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 
Railroad Bridge (NS V2.8), at mile 2.7, in Norfolk, VA, which 
currently operates on signal. The Coast Guard proposes to insert this 
new specific regulation at 33 CFR Sec.  117.1007(a). The amended 
regulation would allow the draw of the bridge to be operated remotely 
by the off-site controller at the NS Railroad Bridge (NS 5), 
at mile 1.1, over the Eastern Branch of the Elizabeth River in Norfolk, 
VA.
    The draw would remain in the open position for navigation and shall 
only be closed for the passage of trains or periodic maintenance 
authorized in accordance with subpart A of this part.
    Before the NS Railroad Bridge (NS V2.8) closes for any 
reason, the remote operator will monitor waterway traffic in the area 
with closed circuit cameras and infrared 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 Railroad Bridge (NS V2.8) is moving from the 
full open to the full closed position, the controller will maintain 
constant surveillance of the navigation channel to ensure that no 
conflict with maritime traffic exists. In the event of failure or 
obstruction of monitoring equipment, the controller 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.
    Before closing the draw, the channel traffic lights would change 
from flashing green to flashing red, the horn would sound five short 
blasts, and an audio voice warning stating, ``Norfolk Southern's 
Railroad Bridge over the Eastern Branch of the Elizabeth River at 
milepost 2.7 will be closing to river traffic.'' Five short blasts of 
the horn would continue until the bridge is seated and locked down to 
vessels, the channel traffic lights would continue to flash red.
    When the rail traffic has cleared, the horn would automatically 
sound one prolonged blast followed by one short blast to indicate that 
the draw of the NS Railroad Bridge (NS V2.8) is about to 
return to its full open position to vessels. During the open swing 
movement, the channel traffic lights would flash red until the bridge 
is in the full open position. In the full open position to vessels, the 
bridge channel lights would flash green followed by an announcement 
stating, ``Security, security, security, the Norfolk Southern Railroad 
Bridge at mile 2.7 is open for river traffic.'' Operational information 
will be provided 24 hours a day on marine channel 13 and via telephone 
(757) 446-5320.
    The Coast Guard proposes to amend 33 CFR 117.1007 by revising 
paragraph (a).
    The proposal would also change the name of the bridge in paragraph 
(a) from ``Norfolk and Western Railroad Bridge'' to ``Norfolk Southern 
Railroad Bridge''. The name changes would accurately reflect the names 
of this bridge. Text modifications to be consistent with other proposed 
changes would 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 have only a minimal impact on 
maritime traffic transiting the bridge. Although the NS Railroad Bridge 
(NS V2.8) will be untended and

[[Page 70093]]

operated from a remote location, mariners can continue their transits 
because the bridge will remain open to mariners, only to be closed for 
train crossings 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 reason. The 
rule allows the NS Railroad Bridge to operate remotely and requires the 
bridge to remain in the open position to vessels the majority of the 
time, only closing for train crossings 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 (Public Law 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 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 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 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.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 
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 proposed 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 
operating regulations for drawbridges are categorically excluded.

List of Subjects in 33 CFR Part 117

    Bridges.

[[Page 70094]]

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.  117.1007 revise paragraph (a) to read as follows:


Sec.  117.1007  Elizabeth River--Eastern Branch.

    (a) The draw of the Norfolk Southern Railroad Bridge (NS 
V2.8), mile 2.7 at Norfolk, shall operate as follows:
    (1) The draw shall remain in the open position for navigation. The 
draw shall only be closed for train crossings or periodic maintenance 
authorized in accordance with Subpart A of this part.
    (2) The bridge shall be operated by the controller at the Norfolk 
Southern Railroad Bridge (NS 5), mile 1.1, over the Eastern 
Branch of the Elizabeth River in Norfolk, VA. The controller shall 
monitor vessel traffic with closed circuit cameras and infrared sensors 
covering the swing radius. Operational information will be provided 24 
hours a day on marine channel 13 and via telephone (757) 446-5320.
    (3) The bridge shall not be operated from the remote location in 
the following events: Failure or obstruction of the infrared sensors, 
closed-circuit cameras or marine-radio communications, or when 
controller visibility is less than \3/4\ of a mile. In these 
situations, a bridge tender must be called to operate the bridge on-
site.
    (4) Before the bridge closes for any reason, the remote operator 
will monitor waterway traffic in the area. The bridge shall 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 bridge is moving, the operator shall maintain constant 
surveillance of the navigation channel.
    (5) Before closing the draw, the channel traffic lights will change 
from flashing green to flashing red, the horn will sound five short 
blasts, and an audio voice warning stating, ``Norfolk Southern's 
Railroad Bridge over the Eastern Branch of the Elizabeth River at 
milepost 2.7 will be closing to river traffic.'' Five short blasts of 
the horn will continue until the bridge is seated and locked down to 
vessels, the channel traffic lights will continue to flash red.
    (6) When the rail traffic has cleared, the horn will automatically 
sound one prolonged blast followed by one short blast to indicate the 
draw is opening to vessel traffic. During the opening swing movement, 
the channel traffic lights will flash red until the bridge returns to 
the fully open position. In the full open position to vessels, the 
bridge channel lights will flash green followed by an announcement 
stating, ``Security, security, security, the Norfolk Southern Railroad 
Bridge at mile 2.7 is open for river traffic.''
* * * * *

    Dated: November 22 2004.
Ben R. Thomason, III,
Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard 
District.
[FR Doc. 04-26520 Filed 12-1-04; 8:45 am]
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