[Federal Register Volume 69, Number 231 (Thursday, December 2, 2004)]
[Rules and Regulations]
[Pages 70057-70059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-26522]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-04-117]
RIN 1625-AA09


Drawbridge Operation Regulation: Atlantic Intracoastal Waterway, 
Elizabeth River (Southern Branch), VA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is changing the operating regulations for the 
Norfolk Southern (NS) 7 Railroad Bridge at Atlantic 
Intracoastal Waterway (AICW) mile 5.8, in Chesapeake, Virginia. The 
final rule for the NS Railroad Bridge will eliminate the need for a 
bridge tender by allowing the bridge to remain in the fully open 
position, to be operated from a remote location, and to close the 
bridge for train crossings and periodic repairs. The final rule will 
provide for the reasonable needs of navigation.

DATES: This rule is effective January 3, 2005.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD05-04-117 and are available for inspection or 
copying at Commander (obr), Fifth Coast Guard District, Federal 
Building, 1st Floor, 431 Crawford Street, Portsmouth, Virginia 23704-
5004 between 8 a.m. and 4:30 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Waverly W. Gregory, Jr., Bridge 
Administrator, Fifth Coast Guard District, at (757) 398-6222.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On August 27, 2004, we published a notice of proposed rulemaking 
(NPRM) entitled ``Drawbridge Operation Regulations; Atlantic 
Intracoastal Waterway, Elizabeth River (Southern Branch), VA'' in the 
Federal Register (69 FR 52617). We received four letters commenting on 
the proposed rule. No public hearing was requested nor held.

Background and Purpose

    Norfolk Southern Corporation (NSC) requested a change to the 
current operating regulation set out in 33 CFR 117.5 that requires the 
drawbridge to open promptly and fully for the passage of vessels when a 
request to open is given.
    NSC would remotely control the opening and closing of the Norfolk 
Southern (NS) 7 Railroad Bridge across the Southern Branch of 
the Elizabeth River at 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.
    Under this rule, the drawbridge would be left in 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 observe the 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 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 must be on-site within 30 minutes to 
operate the bridge.
    During span movement, the channel traffic lights will flash red, 
the horn would sound twice, and an audio voice-warning device will 
announce bridge movement, then two repeat 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 
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 the full open position to 
vessels. During the open span movement, the channel traffic lights will 
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 flash 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.
    This rule will make the closure process of the NS 7 
Railroad Bridge be more efficient during train crossings and periodic 
maintenance and will save operational costs by eliminating bridge 
tenders while providing greater bridge operating capabilities.

Discussion of Comments and Changes

    The Coast Guard received four comments on the NPRM. Three comments, 
from commercial vessel operators, expressed their concerns with the 
location of the off-site remote operation. Their interests centered 
around the limited effectiveness of monitoring and communications with 
approaching vessels, their past experience with current bridge tenders' 
failure to respond to security calls, the lowering of the bridge while 
their vessels are transiting, and the loss of on-site bridge tenders 
controlling the operation of the bridge.
    The remaining comment, offered by NSC, addressed the commercial 
vessel operators' concerns. NSC indicated that the location of the 
Norfolk area bridge operation center at the NS 5 Railroad 
Bridge office was selected because of the better-quality operators' 
house and facilities, economic considerations for relocation and that 
the communication between marine interests and the NS 5 
Railroad Bridge operator will be comparable to the communication with 
the NS 7 Railroad Bridge operator. The

[[Page 70058]]

cameras installed at the NS 7 Railroad Bridge will provide the 
same level of general visibility of the channel and better visibility 
to the north and at night; and the infrared detector system will ensure 
that the NS 7 Railroad Bridge is not lowered on any vessel, 
because it is equipped with sensors.
    NSC has provided a detailed plan which indicates that the 
effectiveness of the communication systems, cameras, boat detection 
system and other enhancements made to their systems will address all of 
the communication and safety needs of the marine community as well as 
those of rail transportation and their customers. Therefore, no changes 
are being made to this final rule.

Regulatory Evaluation

    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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS). We reached this conclusion based on the fact that this 
final rule for the NS 7 Railroad Bridge will provide for 
greater flow of vessel traffic than the current regulations for the 
drawbridge.
    Under the current regulations, the NS 7 Railroad Bridge 
remains closed and opens on signal to vessels. The final rule 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 final rule 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 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 final rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons. The 
final 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.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. In our 
notice of proposed rulemaking, we provided a point of contact to small 
entities who could answer questions concerning proposed provisions or 
option for compliance.

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 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 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 would not create an 
environmental risk to health or risk to safety that might 
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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. 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 consistent 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.

[[Page 70059]]

Environment

    We have considered the environmental impact of this rule and 
concluded that under figure 2-1, paragraph (32)(e), of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation. The final rule only involves the operation 
of an existing drawbridge and will not have any impact on the 
environment. A ``Categorical Exclusion Determination'' is available in 
the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 117

    Bridges.

Regulations

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
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.


0
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, Southern Branch of the 
Elizabeth River to 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 will 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 the event of a failure 
or obstruction, a bridge tender must be called by the off-site remote 
operator and must be on-site within 30 minutes of the call to operate 
the bridge.
    (6) During closing of the span, the channel traffic lights will 
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 will sound 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 will 
flash red, the horn will sound twice, followed by a pause, and then 
five repeat blasts of the horn will sound 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: November 22, 2004.
Ben R. Thomason, III,
Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard 
District.
[FR Doc. 04-26522 Filed 12-1-04; 8:45 am]
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