[Federal Register Volume 88, Number 88 (Monday, May 8, 2023)]
[Proposed Rules]
[Pages 29584-29586]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09049]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2023-0185]
RIN 1625-AA09


Drawbridge Operation Regulation; Sandusky Bay, Sandusky, OH

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to modify the operating regulations 
and signaling requirements that govern the Norfolk Southern Railroad 
Bridge, mile 3.5, over the Sandusky Bay. Further, the Coast Guard also 
proposes adding information to clarify when and how wind blockers may 
be used on the Norfolk Southern Railroad Bridge, mile 3.5. 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-
2023-0185 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
MPH Miles Per Hour
OMB Office of Management and Budget
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose and Legal Basis

    Located on the south shore of Lake Erie, Sandusky Bay extends west 
from its entrance between Cedar Point and Bay Point for about 15 miles 
to Muddy Creek Bay. The Sandusky River flows into the south side of 
Muddy Creek Bay. Recreational and commercial small craft can navigate 
through Sandusky Bay, Muddy Creek Bay, and upstream in the Sandusky 
River for about 15 miles to the Norfolk Southern Railroad Bridge at the 
town of Fremont, Ohio. The only movable bridge over the Sandusky Bay is 
the Norfolk Southern Railroad Bridge, mile 3.5.
    Sandusky Bay is one of the principal waterways in northern Ohio and 
its shoreline covers three counties. International commerce is heavy 
enough in the area that the U.S. Customs and Border Protection opened a 
Sandusky Bay Station in 2012. The south shore of Sandusky Bay boasts 
one of the largest rail-to-ship coal loading facilities in the Great 
Lakes and is home to over 35 recreational vessel marinas and boat 
ramps. Commercial fishing vessels, uninspected charter vessels, power 
boat rental agencies, sailing vessels, and water-skiers pass through 
the draw of the Norfolk Southern Railroad Bridge, mile 3.5 daily in the 
summertime.
    Cedar Point amusement park and marina, near the mouth of Sandusky 
Bay, hosts 21,232 visitors each day, except for holidays and special 
events when visitor numbers average 60,000 people a day.
    The Norfolk Southern Railroad Bridge, mile 3.5, is a single leaf 
bascule bridge in the center of a long causeway that provides a 
horizontal clearance of 64-feet and a vertical clearance of 9-feet in 
the closed position and an unlimited clearance in the open clearance 
based on LWD. The bridge is remotely operated by the Norfolk Southern 
Railroad Bridge, mile 5.76, at Toledo and is regulated by 33 CFR 
117.853. The bridge is required to open on signal, except from November 
through April the bridge is required to open if a 24-hour advance 
notice is provided.
    In 2009, the Coast Guard posted in the Federal Register (74 FR 
63612) a final rule adding the authority for the bridge to operate 
remotely, but the Coast Guard did not update or modernize the rest of 
the regulation. Much of the current regulation remains the same as it 
was listed in the Federal Register in 1984 (49 FR 17452).
    In addition to modernizing the regulation, the Coast Guard also 
hopes the proposed rule will address two specific concerns the Coast 
Guard has noted as it relates to the operation of the Norfolk Southern 
Railroad Bridge, mile 3.5: the responsiveness of drawtenders to marine 
traffic and improved processes as it relates to the use of wind 
blockers. The Coast Guard has received several complaints, mostly 
informal, on the operations of the bridge, specifically complaints that 
the remote drawtender are, at times, non-responsive to telephone and 
radio calls from mariners. The Coast Guard is proposing new 
requirements to address these complaints. As it relates to wind 
blockers, when the winds exceed 40 mph there is a danger that 
lightweight railcars could be blown off the causeway. These half-
floating railcars are a potential hazard to motorists and marine 
traffic. During wind events, the railroad routinely sets upwind 
blockers composed of heavy railcars on the parallel track to block the 
wind. The heavier railcars protect the lighter cars from the effects of 
the wind as said lighter cars transit the bridge. When in place, the 
heavy wind blocking trains prevent the bridge from opening. 
Accordingly, the railroad must coordinate with the local Coast Guard 
Sector office before posting wind

[[Page 29585]]

blockers, as the wind blockers may disrupt a bridge's posted operating 
schedule. Often, there is confusion on how long the wind blocker can be 
posted and when it needs to be moved to allow vessels to pass through 
the bridge. The Coast Guard is proposing new language that will specify 
when a wind blocker is appropriate and stipulate how it will be used by 
the railroad.
    The winter hours allowing for a 24-hour advance notice was popular 
when the U.S. Army Corps of Engineers regulated bridges before the 1966 
Transportation Act transferred those duties to the U.S. Coast Guard.

III. Discussion of Proposed Rule

    To enhance communications and insist that the remote drawtender 
answer the telephone, we propose to require the remote drawtender 
operate and maintain a telephone so boaters can call. We intend to 
continue the requirement of maintaining a VHF-FM Marine Radio 
Telephone.
    The remote bridge operator for Norfolk Southern Railroad Bridge, 
mile 3.5, the subject of this regulation, is physically located at 
Norfolk Southern Railroad Bridge, mile 5.76, in Toledo. Currently, the 
winter advance notice requirements for the two bridges are different; 
which can be confusing to the drawtender. We propose to match the 
requirements of the Norfolk Southern Railroad Bridge, mile 5.76, with 
Norfolk Southern Railroad Bridge, mile 3.5.
    Over the past few years, the Norfolk Southern Railroad Bridge, mile 
3.5, has been programed to automatically open after a train clears the 
block. This has greatly reduced complaints and improved the flow of 
traffic in the waterway. We are proposing to include this as a 
requirement in the new regulation to ensure that said operations, which 
greatly benefit marine traffic, are not interrupted by personnel 
changes at the Railroad.
    Norfolk Southern Railroad historically has placed a wind blocker on 
the bridge when the predicted winds will exceed 40 mph. As discussed 
earlier, a wind blocker is a heavy train that, when posted on a bridge, 
shields lighter trains from the effects of wind. Normally the Norfolk 
Southern Railroad Bridge, mile 5.76, at Toledo, drawtender will call 
USCG Sector Detroit and request to place the wind blocker. However, at 
times, drawtenders don't provide sufficient information to the Sector, 
making it difficult for Sector to effectively act on said requests. 
Still at other times, wind blockers can be found on bridges well before 
or after a wind event, delaying or otherwise frustrating the opening of 
the bridge for vessels. We are proposing a clause to remedy these 
issues.

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.

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 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,

[[Page 29586]]

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-2023-0185 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 01.3.

0
2. Revise Sec.  117.853 to read as follows:


Sec.  117.853  Sandusky Bay.

    The draw of the Norfolk Southern Railroad Bridge, mile 3.5, is 
remotely operated, and is required, in addition to the other signals, 
to operate a radiotelephone and telephone. It will remain open, except 
for the passage of trains, from April 1 through October 31. If the 
winds are predicted to be over 40 MPH, a wind blocker is authorized, 
and the bridge will open with a 2-hour advance notice of a vessel's 
time of intended passage through the draw until the end of the wind 
event. The drawtender will request the cognizant USCG Sector to issue a 
broadcast notice to mariners to alert vessels of the wind blocker and 
the 2-hour advance notice requirement. At all other times, the bridge 
will open if provided at least a 12-hour advance notice.

M.J. Johnston,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2023-09049 Filed 5-5-23; 8:45 am]
BILLING CODE 9110-04-P