[Federal Register Volume 88, Number 88 (Monday, May 8, 2023)]
[Proposed Rules]
[Pages 29586-29591]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08958]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2023-0189]
RIN 1625-AA09


Drawbridge Operation Regulation; Ashtabula River, Ashtabula, OH

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to modify the operating schedule that 
governs the Fifth Street Bridge, mile 0.15, and the Norfolk Southern 
Railroad Bridge, mile 1.5, both over the Ashtabula River. The Coast 
Guard also proposes signaling and signage changes for the Norfolk 
Southern Railroad Bridge, mile 1.5. The Coast Guard is modifying these 
rules in response to complaints received concerning the operations of 
one or more bridges in this waterway and a desire to improve safety, 
remove barriers to interstate commerce, improve communications, and 
standardize winter operations associated with these bridges. We invite 
your comments on this proposed rulemaking.

DATES: Comments and related material must reach the Coast Guard on or 
before July 7, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0189 using Federal Decision-Making Portal at https://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 
temporary final rule, call or email Mr. Lee D. Soule, Bridge Management 
Specialist, Ninth Coast Guard District; telephone 216-902-6085, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
IGLD International Great Lakes Datum of 1985
LWD Low Water Datum based on IGLD85
OMB Office of Management and Budget
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code

[[Page 29587]]

II. Background, Purpose, and Legal Basis

    The Ashtabula River flows into Lake Erie at the City of Ashtabula, 
Ohio. The Ashtabula River is 40 miles in length but only the first 2 
miles of the river is navigable. Large commercial vessels, passenger 
vessels, and recreational vessels use the waterway. There are three 
bridges crossing the Ashtabula River. The Norfolk Southern Railroad, 
mile 0.5, is a fixed overhead conveyor with a horizontal clearance of 
over 50 feet and a vertical clearance of 100 feet above LWD. The Fifth 
Street Bridge, mile 1.4, is a single leaf bascule bridge with a 
reported horizontal clearance of 50 feet and a vertical clearance of 11 
feet above LWD in the closed position and an unlimited clearance in the 
open position. The Norfolk Southern Railroad Bridge, mile 1.5, is a 
single leaf bascule bridge with a horizontal clearance of 112 feet and 
a vertical clearance of 11 feet above LWD in the closed position and an 
unlimited clearance in the open position. There is no alternative route 
for vessels traveling the Ashtabula River beyond mile 0.5 to prevent 
them from passing under or through one or all these bridges. Commercial 
vessels over 600 feet utilize moorings just outside of the river's 
mouth. Several of the vessels in the Ashtabula River are small 
passenger vessels and other small craft over 21-feet.
    The two bascule bridges across the Ashtabula River are regulated by 
33 CFR 117.847. The draw of the Fifth Street Bridge, mile 1.4, is 
required to open on signal for the passage of commercial and emergency 
vessels and on the hour and half for all other vessels. The Norfolk 
Southern Railroad Bridge, mile 1.5, is authorized to operate remotely, 
and is required to open on signal from April 1 through November 30 from 
7 a.m. to 11 p.m. and requires a 24-hour advance notice outside of this 
time.

III. Discussion of Proposed Rule

     The Fifth Street Bridge, mile 1.4, does not have winter hours 
identified in the regulations. The Ashtabula County Engineers submitted 
a written request for winter hours every year from mid-December to the 
end of March; in past years, a 12-hour advance notice for openings has 
been awarded.
    The Norfolk Southern Railroad Bridge, mile 1.5, has winter hours 
identified in the regulations; said hours begin on the last day of 
November and end on the first day in April, where a 24-hour advance 
notice is required.
    The Coast Guard proposes to modify the regulation for both bridges 
to operate with a 12-hour advance notice from October 10 to May 1 when 
ice and other winter weather factors often restrict vessels from 
operating in the river and to provide clarity and consistency to the 
mariners.
    The Fifth Street Bridge, mile 1.4, has operated without complaint 
for the last four years and we do not see a reason to change the 
signage; however, the owner will need to add the winter hours and 
contact information to the currant signage in accordance with 33 CFR 
117.55.
    The Coast Guard proposes more significant changes to the regulation 
as it relates to the Norfolk Southern Railroad Bridge, mile 1.5. The 
Coast Guard proposes these changes in an attempt to resolve issues 
related to timely bridge openings and clear signage. The Coast Guard 
receives several informal complaints annually from mariners related to 
the Norfolk Southern Railroad Bridge, mile 1.5. One series of 
complaints relates to concerns that Norfolk Southern has unreasonably 
hindered or delayed interstate commerce by prioritizing land 
transportation needs over the marine transportation needs. Several 
vessels have reported that they were delayed over twelve hours, which 
placed an additional burden on the mariners to obtain temporary 
dockage, transportation, or hotel rooms because the bridge would not 
open, preventing them from returning to their dock. Typically, the 
railroad states that the remote drawtender forgot to reopen the bridge 
after a train crossed or that it was too windy to open the bridge for 
vessels.
    Another concern related to the Norfolk Southern Railroad Bridge, 
mile 1.5 is that mariners do not understand how the bridge is supposed 
to operate. The current signs do not inform the mariners that the 
bridge is remotely operated; the signs also fail to list the sound 
signal to request a bridge opening. The current sign instructs mariners 
to call the bridge on VHF-FM marine Channel 13, the ship-to-ship 
navigation and collision prevention channel and not channel 16 the 
international hailing channel.
    The Coast Guard and Norfolk Southern have been able to resolve some 
of the delay issues, but not all. The crossing has continued to be 
problematic, requiring the Coast Guard to propose a change in the 
regulation to ensure that marine traffic can use the waterway in manner 
contemplated by law and regulation.
    Communications between the mariners and the bridge owners have been 
identified as the leading contributing factor in almost every delay of 
bridge operations and previous signs at the Norfolk Southern Railroad 
Bridge, mile 1.5, have voluntarily provided phone numbers for the 
mariners to call, but the numbers on the sign have often been outdated 
or have gone unanswered by the remote drawtender. 33 CFR 117.55 
requires signage that summarizes how the bridge shall operate under the 
requirements of 33 CFR 117-part B and this has proven challenging to 
the railroad and mariners alike. The most recent signs do not include 
all communication methods available between the railroad drawtender and 
the vessel operators. As shown below:

[[Page 29588]]

[GRAPHIC] [TIFF OMITTED] TP08MY23.009

    We propose to standardize this signage for the remotely operated 
railroad bridges and propose the example below to be the signage used. 
The size, type, and spacing of characters must conform to the standard 
alphabets for highway signs and be visible to vessels approaching the 
bridge from upriver or down river of the bridge and be readable at a 
minimum distance of 500 feet.

[[Page 29589]]

[GRAPHIC] [TIFF OMITTED] TP08MY23.010

    To improve communications the District Commander is requiring the 
Norfolk Southern Railroad Bridge, mile 1.5, in addition to monitoring 
the signals listed in 33 CFR 117.15, to operate and maintain a Radio 
Telephone as required under 33 CFR 117.23 and operate and maintain a 
telephone whose number will be maintained on the appropriate signs at 
the bridge.

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and Executive Orders related to rulemaking. Below we summarize our 
analyses based on these statutes and Executive Orders.

A. Regulatory Planning and Review

    Executive Orders 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. This NPRM has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, the NPRM 
has not been reviewed by the Office of Management and Budget (OMB). 
This regulatory action determination is based on the ability that 
vessels can still transit the bridge given advanced notice and the 
requirement for signage has been in effect since April 24, 1984 (49 FR 
17452) without any complaint to the burden of cost to the bridge owner.

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, for the reasons stated in section IV.A 
above 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

[[Page 29590]]

compliance, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section. 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 Governments

    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 Executive Order 
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.

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 rule under Department of Homeland Security 
Management Directive 023-01, Rev.1, associated implementing 
instructions, and Environmental Planning Policy COMDTINST 5090.1 
(series), which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The 
Coast Guard has determined that this action is one of a category of 
actions that do not individually or cumulatively have a significant 
effect on the human environment. This proposed rule promulgates the 
operating regulations or procedures for drawbridges. Normally such 
actions are categorically excluded from further review, under paragraph 
L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental 
Planning Implementation Procedures.
    Neither a Record of Environmental Consideration nor a Memorandum 
for the Record are 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.

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.
    Submitting comments. We encourage you to submit comments through 
the Federal Decision-Making Portal at https://www.regulations.gov. To 
do so, go to https://www.regulations.gov, type USCG-2023-0189 in the 
search box and click ``Search.'' Next, look for this document in the 
Search Results column, and click on it. Then click on the Comment 
option. If your material cannot be submitted using https://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION 
CONTACT section of this document for alternate instructions.
    Viewing material in docket. To view documents mentioned in this 
proposed rule as being available in the docket, find the docket as 
described in the previous paragraph, and then select ``Supporting & 
Related Material'' in the Document Type column. Public comments will 
also be placed in our online docket and can be viewed by following 
instructions on the https://www.regulations.gov Frequently Asked 
Questions web page. We review all comments received, but we will only 
post comments that address the topic of the proposed rule. We may 
choose not to post off-topic, inappropriate, or duplicate comments that 
we receive. 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 of any posting or updates to the docket.
    We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have 
provided. For more about privacy and submissions in response to this 
document, see DHS's eRulemaking System of Records notice (85 FR 14226, 
March 11, 2020).

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. 00170.1, Revision No. 01.3.

0
2. Revise Sec.  117.847 to read as follows:


Sec.  117.847  Ashtabula River.

    (a) The draw of the Fifth Street Bridge, mile 1.4, over the 
Ashtabula River will open on signal for the passage of vessels on the 
hour and half hour, except from October 10 through May 1 when no 
drawtender is required to be in attendance and the bridge will open on 
signal with a 12-hour advance notice from vessels.
    (b) The draw of the Norfolk Southern Railroad Bridge, mile 1.5, 
over the Ashtabula River will open on signal and may be remotely 
operated. From October 10 through May 1 the bridge will open on signal 
with a 12-hour advance notice from vessels.
    (1) The bridge owner will maintain and monitor a 2-way public 
address system, VHF-FM Marine Radio, and telephone.
    (2) The bridge will display a sign readable by vessels approaching 
the bridge from upriver and down river and readable for 500 feet that 
states:
    (i) The name of the bridge;
    (ii) The river mile;
    (iii) That the bridge is remotely operated;
    (iv) That mariners may signal the bridge to open by sounding one 
prolonged blast followed by one short blast of the horn, calling via 
VHF-FM Marine Radio Channel 16, or by calling the number posted by the 
owner; and.

[[Page 29591]]

    (v) Information notifying mariners that from October 10 through May 
1 the bridge requires a 12-hour advance notice for openings by calling 
the number posted by the owner.

M.J. Johnston,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2023-08958 Filed 5-5-23; 8:45 am]
BILLING CODE 9110-04-P