Notice of proposed rulemaking.
The Coast Guard proposes to change the regulations that govern the operation of the Norfolk Southern Railroad Bridges over the Christina River at miles 4.1 and 4.2, both in Wilmington, DE. Since there have been no recorded requests for vessel openings in more than 20 years for either bridge, this proposal would change the current regulations by allowing the drawbridge, at mile 4.1, to be maintained in the closed position to navigation and the drawbridge, at mile 4.2, to be left in the open-to-navigation position.
Comments and related material must reach the Coast Guard on or before March 23, 2012.
You may submit comments identified by docket number USCG-2011-1136 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: (202) 493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, 20590-0001.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.
To avoid duplication, please use only one of these four methods. 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 proposed rule, call or email Terrance Knowles, Coast Guard; telephone (757) 398-6587, email Terrance.A.Knowles@uscg.mil. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366-9826.
Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change to http://www.regulations.gov and will include any personal information you have provided.
If you submit a comment, please include the docket number for this rulemaking (USCG-2011-1136), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (http://www.regulations.gov), or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via http://www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.
To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rules” and insert “USCG-2011-1136” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2; by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2011-1136” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC, 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES. Please explain 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.
Basis and Purpose
Norfolk Southern Corporation (NS), who owns and operates both swing-type bridges, has requested changes in the operating regulations of their railroad drawbridges across Christina River, at miles 4.1 and 4.2, in Wilmington, DE, set out in 33 CFR 117.237(d).
The NS drawbridges at miles 4.1 and 4.2 have vertical clearances in the closed position to vessels of six and three feet above mean high water, respectively.
Under the regular operating schedule, the drawbridges shall open on signal from 6 a.m. to 8 p.m., if at least 24 hours notice is given; and from 8 p.m. to 6 a.m., the draws need not be opened for the passage of vessels.
There had been no request to open either drawbridge for a vessel for more than 20 years. Approximately two trains per day traverse the NS drawbridge at mile 4.1, and there is no train service at the NS drawbridge at mile 4.2, where the bridge is currently placed in the open-to-navigation position. In accordance with 33 CFR 117.39 and 117.41, the Coast Guard proposes to allow the NS drawbridge at mile 4.1 to be maintained in the closed-to-navigation position; and allow the NS drawbridge at mile 4.2 to be maintained in the open-to-navigation position and discontinue draw tender service for both drawbridges. The 24-hour advance notice in the current regulation is no longer necessary due to the lack of openings.
Discussion of Proposed Rule
The Coast Guard proposes to revise 33 CFR 117.237(d). This proposed change would divide the current paragraph into paragraphs (d)(1) and (d)(2).
Paragraph (d)(1) would contain the proposed rule for the Norfolk Southern Railroad Bridge at mile 4.1. The rule would allow the draw of the bridge to remain in the closed-to-navigation position and would not require openings for the passage of vessels.
Paragraph (d)(2) would contain the proposed rule for the Norfolk Southern Railroad Bridge at mile 4.2. The rule would allow the draw of the bridge to be maintained in the open-to-navigation position and would allow for unobstructed passage of vessels.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
Regulatory Planning and Review
This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866. The Office of Management and Budget has not reviewed it under that Order. The proposed change is expected to have minimal impact on mariners since there have been no requests for vessel openings for more than 20 years for either drawbridge with no anticipated change to vessel traffic.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 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 action will not have a significant economic impact on a substantial number of small entities for the following reasons. There have been no requests to open either drawbridge for the passage of vessels for more than 20 years and there is no anticipated change to vessel traffic.
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.
Assistance for Small Entities
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 so that they can better evaluate its effects on them and participate in the rulemaking. 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 Terrance Knowles, Environmental Protection Specialist, Fifth Coast Guard District, (757) 398-6587 or email Terrance.A.Knowles@uscg.mil. 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.
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.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 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 Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
Indian Tribal Governments
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.
We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment because it simply promulgates the operating regulations or procedures for drawbridges. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.
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:
2. Revise paragraph § 117.237(d) to read as follows:
* * * * *
(d) The following drawbridges at Wilmington shall operate as follows:
(1) The Norfolk Southern Railroad Bridge, mile 4.1, shall be maintained in the closed-to-navigation position;
(2) The Norfolk Southern Railroad Bridge, mile 4.2, shall be maintained in the open-to-navigation position.
* * * * *
Dated: January 12, 2012.
William D. Lee,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
[FR Doc. 2012-2789 Filed 2-6-12; 8:45 am]
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