2023-08958. Drawbridge Operation Regulation; Ashtabula River, Ashtabula, OH

AGENCY:

Coast Guard, DHS.

ACTION:

Notice of proposed rulemaking.

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 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 [phone], email [e-mail].

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

§ Section

U.S.C. United States Code

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:

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.

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 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 https://www.regulations.gov. To do so, go to https://www.regulations.gov, 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 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

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.

2. Revise § 117.847 to read as follows:

§ 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.

(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.