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Drawbridge Operation Regulations; Elizabeth River, Eastern Branch, Norfolk, VA
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 15, 2000 (Volume 65, Number 94)]
[Proposed Rules]
[Page 30938-30941]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my00-27]
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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