Proposed Rule2023-08958
Drawbridge Operation Regulation; Ashtabula River, Ashtabula, OH
Primary source
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Published
May 8, 2023
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 88 (Monday, May 8, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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
<a href="/cdn-cgi/l/email-protection#4f032a2a610b611c203a232a0f3a3c2c2861222623"><span class="__cf_email__" data-cfemail="0f436a6a214b215c607a636a4f7a7c6c6821626663">[email protected]</span></a>.
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. To
do so, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.