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###### Department of Transportation

###### Coast Guard 

          - 33 CFR Part 117 
          - [CGD05-98-090] 
          - RIN 2115-AE47 

# AGENCY:

Coast Guard, DOT. 

# ACTION:

Supplemental notice of proposed rulemaking. 

# 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)      ( print 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                           ( print 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: 

§ 117.1007 

(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.                                   ( print 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