[Federal Register Volume 81, Number 22 (Wednesday, February 3, 2016)]
[Proposed Rules]
[Pages 5679-5681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-01897]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2015-1011]
RIN 1625-AA09


Drawbridge Operation Regulation; Broad Creek, Laurel, DE

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to change the operating schedule that 
governs the Norfolk Southern Railroad Bridge over Broad Creek, mile 
8.0, at Laurel, DE. This proposed rule will change the current 
regulation requiring a four-hour advance notice and allow the bridge to 
remain in the closed position for the passage of vessels.

DATES: Comments and related material must reach the Coast Guard on or 
before March 21, 2016.

ADDRESSES: You may submit comments identified by docket number USCG-
2015-1011 using Federal eRulemaking Portal at http://www.regulations.gov.
    See the ``Public Participation and Request for Comments'' portion 
of the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule, call or email Mrs. Jessica Shea, Fifth Coast Guard District 
(dpb), at (757) 398-6422, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive order
FR Federal Register
NPRM Notice of proposed rulemaking
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code

II. Background, Purpose and Legal Basis

    The current operating schedule for the bridge is set out in 33 CFR 
117.233 (a) issued September 11, 2006. As outlined in this regulation, 
the Norfolk Southern Railroad Bridge shall open on signal if at least 
four hours notice is given. The Fifth Coast Guard District Commander 
received a request from the bridge owner in July 2015 to consider 
making a permanent change to the operating regulation for the Norfolk 
Southern Railroad Bridge per 33 CFR 117.8(a).

[[Page 5680]]

This proposed rulemaking aligns the new schedule with the observed lack 
of marine traffic that requires a bridge opening and the operating 
regulations for the Poplar Street and US Highway 13A, which also cross 
Broad Creek. The proposed change would amend the existing regulation to 
state that the bridge need not open.
    The Norfolk Southern Railroad Bridge over Broad Creek, mile 8.0, at 
Laurel, DE, has a vertical clearance of fourteen feet above mean high 
water in the closed position and is unlimited in the open position. The 
charted depth at the bridge is four feet. The existing structure is a 
swing bridge that was authorized in 1910. The structure has been used 
by trains since it was completed in 1915; however, the bridge owner 
reported that no openings have been requested since it was acquired by 
Norfolk Southern in 1999.
    Milford Fertilizer had a dock that was used by commercial traffic 
upstream of the railroad bridge when the existing structure was issued 
a bridge permit in 1910. Prior to publishing this NPRM, the Coast Guard 
contacted the fertilizer company to determine if there would be any 
impacts to their operations. The fertilizer plant modified the 
operations conducted in this location and has not used the dock since 
the 1970s. There is no record of any other commercial maritime traffic 
on Broad Creek, DE. There are residential docks and municipal boat 
ramps downstream of the Norfolk Southern Railroad Bridge. Recreational 
traffic is present during the boating season with the peak during the 
summer months.

III. Discussion of Proposed Rule

    This NPRM proposes to change the status of the Norfolk Southern 
Railroad Bridge to need not open for the passage of vessels. In order 
to align the operating schedule of the bridge with observed marine 
traffic, the proposed change amends the regulation to state that the 
bridge need not open. The lack of requests from vessels for bridge 
openings since 1999 illustrate that the vessels that use this waterway 
can safely navigate while the drawbridge is in the closed-to-navigation 
position.

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and Executive orders (E.O.s) related to rulemaking. Below we summarize 
our analyses based on these statutes and E.O.s and we discuss First 
Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits. 
E.O. 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This NPRM has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, the NPRM has not 
been reviewed by the Office of Management and Budget. Based on current 
maritime traffic, using Norfolk Southern documentation and notes in the 
Coast Guard bridge files, there will be few, if any, vessels impacted 
by this proposed change as there has not been a requested opening since 
1999.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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. While some owners or operators of 
vessels intending to transit the bridge may be small entities, since 
there have been no requests for openings since 1999, this proposed rule 
would not have a significant economic impact on any vessel owner or 
operator.
    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.
    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. 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 the person listed in the FOR FURTHER INFORMATION 
CONTACT, above. The Coast Guard will not retaliate against small 
entities that question or complain about this proposed rule or any 
policy or action of the Coast Guard.

C. 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).

D. Federalism and Indian Tribal Government

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this proposed rule under that Order and 
have determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in E.O. 13132.
    Also, 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. If 
you believe this proposed rule has implications for federalism or 
Indian tribes, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section above.

E. 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 (adjusted for 
inflation) or more in any one year. Though this proposed rule will not 
result in such an expenditure, we do discuss the effects of this 
proposed rule elsewhere in this preamble.

F. Environment

    We have analyzed this proposed rule under Department of Homeland 
Security Management Directive 023-01 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 action is one of a 
category of

[[Page 5681]]

actions which do not individually or cumulatively have a significant 
effect on the human environment. This proposed rule simply promulgates 
the operating regulations or procedures for drawbridges. Normally such 
actions are categorically excluded from further review, under figure 2-
1, paragraph (32)(e), of the Instruction.
    Under figure 2-1, paragraph (32)(e), of the Instruction, an 
environmental analysis checklist and a categorical exclusion 
determination are not required for this rule. We seek any comments or 
information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. If 
you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, you may review a Privacy Act notice regarding the Federal 
Docket Management System in the March 24, 2005, issue of the Federal 
Register (70 FR 15086).
    Documents mentioned in this document, and all public comments, are 
in our online docket at http://www.regulations.gov and can be viewed by 
following that Web site's instructions. Additionally, if you go to the 
online docket and sign up for email alerts, you will be notified when 
comments are posted or a final rule is published.

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

0
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.

0
2. Revise Sec.  117.233(a) to read as follows:


Sec.  117.233  Broad Creek.

    (a) The draw of the Norfolk Southern bridge at mile 8.0, at Laurel, 
need not open for the passage of vessels.
* * * * *

    Dated: January 14, 2016.
Stephen P. Metruck,
Rear Admiral, United States Coast Guard Commander, Fifth Coast Guard 
District.
[FR Doc. 2016-01897 Filed 2-2-16; 8:45 am]
BILLING CODE 9110-04-P