[Federal Register Volume 65, Number 94 (Monday, May 15, 2000)]
[Proposed Rules]
[Pages 30938-30941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12147]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 117

[CGD05-98-090]
RIN 2115-AE47


Drawbridge Operation Regulations; Elizabeth River, Eastern 
Branch, Norfolk, VA

AGENCY: Coast Guard, DOT.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The Coast Guard has revised its proposal to change the 
regulations governing the operation of the Norfolk and Western Railroad 
drawbridge across the Eastern Branch of the Elizabeth River, mile 2.7, 
at Norfolk, Virginia. The revised proposal would require on-signal 
openings from 6 a.m. to 10 p.m. using a half-cycle draw operation and 
would reduce the advance notice required at other times from 3 hours to 
2 hours. This change would provide for the reasonable needs of 
navigation.

DATES: Comments and related material must reach the Coast Guard on or 
before July 14, 2000.

ADDRESSES: You may mail comments and related material to the Commander 
(Aowb), Fifth Coast Guard District, Federal Building, 4th Floor, 431 
Crawford Street, Portsmouth, Virginia 23704-5004, or they may be hand-
delivered to the same address between 8 a.m. and 4:30 p.m., Monday 
through Friday, except Federal holidays. Commander (Aowb), Fifth 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 and 
copying at the above address.

FOR FURTHER INFORMATION CONTACT: Ann Deaton, Bridge Administrator, 
Fifth Coast Guard District, (757) 398-6222.

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 (CGD05-98-
090), 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 
81/2 by 11 inches, suitable for copying. If you would like to know they 
reached us, please enclose a stamped, self-addressed postcard or 
envelope. We will consider all comments and material 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 (Aowb), 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 at a time and place announced by a later notice in the Federal 
Register.

Regulatory History

    On November 2, 1998, the Coast Guard published a Notice of Proposed 
Rulemaking (NRPM) entitled ``Drawbridge Operation Regulations; 
Elizabeth River, Eastern Branch, Norfolk, Virginia'' in the Federal 
Register (63 FR 58676). We also distributed local notice of the Federal 
Register publication. We received 652 comments on the proposed rule. 
Most of the comments included a request for a public hearing, but based 
on the number of comments and the issues addressed by the comments, we 
determined that a public hearing would not provide additional 
information to aid the rulemaking process.

Background and Purpose

    The Norfolk and Western Railroad drawbridge is owned and operated 
by Norfolk Southern Corporation (NSC). The regulations at 33 CFR 
117.1007(a)

[[Page 30939]]

require the bridge to open on signal from 6 a.m. to 10 p.m. and require 
a three-hour advance notice for openings from 10 p.m. to 6 a.m. all 
year.
    NSC initially requested a change to the regulations that would have 
reduced the hours during the day and times of the year when on-signal 
openings are required. Specifically, they requested that the drawbridge 
only be required to open on signal from April 15 to September 30, 
Monday through Thursday from 10 a.m. to 6 p.m. and Friday through 
Sunday from 6 a.m. to 11 p.m. At all other times, the drawbridge would 
open only after a three-hour advance notice.
    NSC based their request on data from the 1996 and 1997 drawlogs. 
The logs show that from April to October during the weekdays (Monday 
through Thursday) from 10 a.m. to 6 p.m., and during the weekends 
(Friday through Sunday) from 6 a.m. to 11 p.m., the waterway traffic 
was at its peak. From 6 p.m. to 10 a.m. weekdays, and from 11 p.m. to 6 
a.m. weekends during these same months, NSC suggested that waterway 
traffic decreased sufficiently to justify placing the bridge in 
advance-notice status. NSC also claimed that reduced maritime traffic 
from October to April justified a three-hour advance notice requirement 
for bridge openings during that period.
    We reviewed all of the drawlogs and found that waterway traffic, 
particularly recreational, remained active through October and 
November. From December to mid-April, recreational waterway traffic 
decreased by 80% while commercial waterway traffic remained steady. The 
information provided by NSC showed that during October and November 
1996, the number of draw openings were 86 and 73, respectively. During 
October and November 1997, the number of openings were 88 and 59, 
respectively. During the months of June, July and August of 1996, the 
number of openings were 180, 106, and 137. In 1997 during the same 
months, the number of openings were 155, 107, and 148. Even though draw 
openings decreased from October through November when compared to the 
peak summer months, we decided that the needs of maritime traffic 
required that the months of October and November be included in the on-
signal season to more fairly balance the competing needs of the 
railroad and vessel traffic. The NPRM proposed on-signal openings from 
April 15 to November 30, Monday through Thursday, from 10 a.m. to 6 
p.m., and Friday through Sunday from 6 a.m. to 11 p.m. At all other 
times the bridge would only have to open for vessel traffic after three 
hours advance notice.
    After publication of the proposal, we received 652 comments from 
the public. All objected to the proposed changes. We notified NSC of 
the overwhelming public opposition to our proposed changes and asked 
them for additional input in a letter dated January 22, 1999. NSC 
responded in a letter dated February 11, 1999. We facilitated a meeting 
on April 20,1999, during which NSC, local government representatives, 
and other interested attendees discussed the proposed rule and their 
respective needs and concerns. Representatives from the Norfolk Police 
and Fire Departments and the Virginia Marine Patrol voiced concerns 
about bridge openings in case of emergencies. Representatives of the 
Lower Chesapeake Waterman's Association voiced concerns that the 
proposed 10 a.m. start time for on-signal openings would interfere with 
commercial fishing and crabbing enterprises which require early morning 
transits. The validity of the number of openings logged by NSC was also 
questioned. All other issues raised at the meeting relevant to this 
rulemaking were the same as those contained in the written comments to 
the docket. A written summary of that meeting is available for review 
in the public docket.
    In July 1999, NSC informed the Coast Guard that the bridge had at 
times used a half-cycle operation and inquired about the possibility of 
incorporating half-cycle operation as part of a revised proposal. (A 
``full cycle'' involves changing a bridge from its current position to 
the opposite position and then returning it to the position from which 
it began. In a ``half-cycle'' operation, a bridge's position is changed 
from its current position to the opposite position and then remains 
there until it is necessary to return the bridge to its original 
position. That is, the bridge goes from the closed position to the open 
position or vice versa, but does not complete the ``cycle'' to it's 
original position, hence the term ``half-cycle'' operation.) This type 
of operation is permitted and offers some benefits to both bridge 
operators and waterway users. Bridge operators reduce the wear and tear 
on the bridge and waterway users enjoy increased ease of navigation and 
reduced delay in transiting through the bridge.

Discussion of Comments and Changes

    We received 652 comments objecting to the proposed rule change to 
reduce the on-signal opening requirements of the Norfolk and Western 
Railroad Bridge. The vast majority of those comments (over 630) were 
``form letters,'' signatures on a petition, and letters that although 
individually drafted contained the same or similar language. These and 
other comments opposed the proposed changes and favored maintaining the 
current regulations or slightly increasing the hours of on-signal 
openings on weekend and holiday nights. Other suggestions included 
requiring the bridge to remain in the open position unless actually 
being used for train traffic, automating the operation of the bridge, 
and requiring the bridge to open on-signal at all times.
    Reasons cited in support of the above suggestions included the 
effect on property values and future development, concern about the 
ability of waterborne emergency personnel to transit the waterway, 
inconvenience and interference with the commercial enterprise of 
fisherman, inconvenience and interference with the recreational 
pursuits of other waterway users, and safety concerns of those who 
wished to return to port due to deteriorating weather conditions and 
who were hampered in that endeavor by the advance notice requirements.
    The comments concerning future development, property values, and 
transit of emergency personnel were not accompanied by any supporting 
data. Having evaluated the comments, the Coast Guard is satisfied that 
the existing federal regulations found at 33 CFR 117.31 regarding 
operation of the draw for emergency situations are sufficient based on 
the information provided by the emergency service agencies involved.
    The comments submitted concerning actual usage of the waterway were 
considered and balanced against the comments made by the bridge 
operator. The revelation that half-cycle operations had been used in 
the past casts doubt on the reliability of using the drawlogs as a 
valid indicator of vessel traffic; it is impossible to tell how many 
vessels actually transited through the bridge during periods when it 
remained in the open to navigation position.
    Based on all the information received since the publication of the 
NPRM, we are revising our original proposal which would have reduced 
the hours during the day and times of the year when on-signal openings 
are required. The proposal to have months of the year during which no 
on-signal opening hours were required has been dropped. Rather than 
limiting the times during which the drawbridge will open on signal, we 
propose to keep the same on-signal hours as in the current regulations 
using a ``half-cycle

[[Page 30940]]

operation'' that will reduce the number of openings during the on-
signal hours. Beginning at 6 a.m. when the draw first opens for vessel 
passage, it will stay in the open position, rather than completing the 
draw cycle back to the closed position. It will remain in the open to 
navigation position until a train crossing requires that it be lowered 
to the closed position. It will then stay in the closed position until 
a vessel passage requires it to be opened again. Between 6 a.m. and 10 
p.m. this half-cycle operation will reduce the number of complete 
cycles normally caused by vessel passages through the draw and should 
effectively keep the draw in the open to navigation position during 
most of the on-signal period. This will reduce the waiting time for 
vessels and reduce the wear and tear of normal operations on the 
drawbridge and will meet both the needs of navigation and train 
traffic.
    In addition, we are reducing the current advance notice requirement 
from three hours to two hours during the 10 p.m. to 6 a.m. period. The 
reduction in the amount of advance notice required will allow waterway 
users greater flexibility in planning their transits of the bridge 
while not burdening the bridge operator with extended hours of on-
signal operation unnecessarily. It is also responsive to the comments 
from vessel operators who expressed safety concerns over being 
unnecessarily delayed in returning to their moorings, especially under 
adverse weather conditions.

Regulatory Evaluation

    This proposal is not a significant regulatory action under section 
3(f) of Executive Order 12866 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 Transportation (DOT) (44 FR 11040; February 26, 
1979).
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under paragraph 10e of the 
regulatory policies and procedures of DOT is unnecessary.
    We reached this conclusion based on the fact that the proposed 
change will not impede maritime traffic but will actually serve to 
increase the ease of use by waterway users, while still providing for 
the needs of the bridge owner.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 
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 affect the following entities, some of 
which might be small entities: the owners and operators of vessels that 
desire to transit the waterway and homeowners associations representing 
property owners upstream of the drawbridge. This proposed rule would 
not have a significant economic impact on a substantial number of small 
entities for the following reasons. The proposed rule will increase the 
amount of time the drawbridge is open during peak waterway usage and 
decreases the notification requirement for off-peak opening of the 
drawbridge.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as small entitiy and that his rule would have a 
significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and in what way and to 
what degree this rule would economically affect it.

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

    We have analyzed this proposed rule under E.O. 12612 and have 
determined that this rule does not have sufficient implications for 
federalism to warrant the preparation of a Federalism Assessment.

Unfunded Mandates and Enhancing the Intergovernmental Partnership

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) and 
E.O. 12875, Enhancing the Intergovernmental Partnership, (58 FR 58093, 
October 28, 1993) govern the issuance of Federal regulations that 
require unfunded mandates. An unfunded mandate is a regulation that 
requires a State, local, or tribal government or the private sector to 
incur direct costs without the Federal Government's having first 
provided the funds to pay those costs. This proposed rule would not 
impose an unfunded mandate.

Taking of Private Property

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under E.O. 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 E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this proposed rule under E.O. 13045, Protection of 
Children from Environmental Health Risks and Safety Risks. This rule is 
not an economically significant rule and does not concern an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Environment

    We considered the environmental impact of this proposed rule and 
concluded that, under figure 2-1, paragraph (32)(e), of Commandant 
Instruction M16475.lC, this proposed rule is categorically excluded 
from further environmental documentation. This proposed rule only deals 
with the operating schedule of an existing drawbridge and will have no 
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.
    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; 49 CFR 1.46; 33 CFR 1.05-1(g); Section 
117.255 also issued under the authority of Pub. L. 102-4587, 106 
Stat. 5039.

    2. Section 117.1007(a) is revised to read as follows:


Sec. 117.1007  Elizabeth River--Eastern Branch.

    (a) The draw of the Norfolk and Western Railroad bridge, mile 2.7 
in Norfolk shall operate as follows:
    (1) From 6 a.m. to 10 p.m., the draw shall open on signal if it is 
in the closed to navigation position and remain open until a train 
crossing requires that it be returned to the closed to navigation 
position.

[[Page 30941]]

    (2) From 10 p.m. to 6 a.m., the draw shall open on signal if at 
least two hours notice is given.
* * * * *

    Dated: May 3, 2000.
Thomas E. Bernard,
Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard 
District.
[FR Doc. 00-12147 Filed 5-12-00; 8:45 am]
BILLING CODE 4830-01-P