[Federal Register Volume 83, Number 226 (Friday, November 23, 2018)]
[Rules and Regulations]
[Pages 59307-59312]
[FR Doc No: 2018-25544]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2016-0257]
RIN 1625-AA09

Drawbridge Operation Regulation; Delaware River, Pennsauken
Township, NJ

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is modifying the operating regulation that
governs the DELAIR Memorial Railroad Bridge across the Delaware River,
mile 104.6, at Pennsauken Township, NJ. This modified regulation will
allow the bridge to be remotely operated from the Conrail South Jersey
dispatch center in Mount Laurel, NJ, instead of being operated by an
on-site bridge tender. This regulation will not change the operating
schedule of the bridge.

DATES: This rule is effective December 24, 2018.

ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to http://www.regulations.gov. Type USCG-
2016-0257 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open
Docket Folder on the line associated with this rulemaking.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Hal R. Pitts, Fifth Coast Guard District (dpb);
telephone<PHONE_NUMBER>, email [email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
OMB Office of Management and Budget
NPRM Notice of Proposed Rulemaking (Advance, Supplemental)
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On April 12, 2017, we published a document in the Federal Register
entitled, ``Drawbridge Operation Regulation; Delaware River, Pennsauken
Township, NJ'' announcing a temporary deviation from the regulations,
with request for comments (see 82 FR 17562). This temporary deviation
commenced at 8 a.m. on April 24, 2017, and concluded at 7:59 a.m. on
October 21, 2017. The comment period closed on August 17, 2017. The
purpose of the deviation was to test the newly installed remote
operation system of the DELAIR Memorial Railroad Bridge across the
Delaware River, mile 104.6, at Pennsauken Township, NJ, owned and
operated by Conrail Shared Assets. The installation of the remote
operation system did not change the operational schedule of the bridge.
    On June 30, 2017, we published a notice of proposed rulemaking
(NPRM) entitled, ``Drawbridge Operation Regulation; Delaware River,
Pennsauken Township, NJ'' (see 82 FR 29800). This proposed regulation
would allow the bridge to be remotely operated from the Conrail South
Jersey dispatch center in Mount Laurel, NJ, instead of being operated
by an on-site bridge tender. This proposed regulation would not change
the operating schedule of the bridge. The original comment period
closed on August 18, 2017.
    During the initial temporary deviation performed from 8 a.m. on
April 24, 2017, through 7:59 a.m. on October 21, 2017, the bridge owner
identified deficiencies in the remote operation center procedures,
bridge to vessel communications, and equipment redundancy. Comments
concerning these deficiencies were submitted to the docket and provided
to the Coast Guard and bridge owner by representatives from the
Mariners' Advisory Committee for the Bay and River Delaware.
    On October 18, 2017, we published a document in the Federal
Register entitled, ``Drawbridge Operation Regulation; Delaware River,
Pennsauken Township, NJ'' announcing a second temporary deviation from
the regulations, with request for comments (see 82 FR 48419). This
temporary deviation commenced at 8 a.m. on October 21, 2017, and
concluded at 7:59 a.m. on April 19, 2018. This document included a
request for comments and related material to reach the Coast Guard on
or before January 15, 2018.
    On December 6, 2017, we published a notice of proposed rulemaking;
reopening of comment period; entitled ``Drawbridge Operation
Regulation; Delaware River, Pennsauken Township, NJ'' in the Federal
Register (see 82 FR 57561). This document included a request for
comments and related material to reach the Coast Guard on or before
January 15, 2018.
    On January 22, 2018, we published a notice of temporary deviation
from regulations; reopening comment period; entitled ``Drawbridge
Operation Regulation; Delaware River, Pennsauken Township, NJ'' in the
Federal Register (see 83 FR 2909). This document included a request for
comments and related material to reach the Coast Guard on or before
March 2, 2018.
    On February 15, 2018, we published a notice of proposed rulemaking;
reopening comment period; entitled ``Drawbridge Operation Regulation;
Delaware River, Pennsauken Township, NJ'' in the Federal Register (see
83 FR 6821). This document included a request for comments and related
material to reach the Coast Guard on or before March 2, 2018.
    The Coast Guard reviewed 26 comments posted to the docket and six
reports with supporting documentation submitted by the bridge owner
during the initial and second temporary deviation periods concerning
the remote operation system of the DELAIR Memorial Railroad Bridge.
Through this review, the Coast Guard found that further testing and
evaluation of the remote operation system of the bridge was necessary
before making a decision on the proposed regulation.
    On April 26, 2018, we published a document in the Federal Register
entitled, ``Drawbridge Operation Regulation; Delaware River, Pennsauken
Township, NJ'' announcing a third temporary deviation from the
regulations, with request for comments (see 83 FR 18226). This
temporary deviation commenced at 8 a.m. on April 19, 2018, and
concluded at 7:59 a.m. on October 16, 2018. This document included a
request for comments and related material to reach the Coast Guard on
or before August 17, 2018.
    On May 4, 2018, we published a notice of proposed rulemaking;
reopening comment period; entitled ``Drawbridge Operation Regulation;
Delaware River, Pennsauken Township, NJ'' in the Federal Register (see
83 FR 19659). This document included a request for comments and related
material to reach the Coast Guard on or before August 17, 2018.
    On October 17, 2018, we published a document in the Federal
Register entitled, ``Drawbridge Operation Regulation; Delaware River,
Pennsauken Township, NJ'' announcing a temporary deviation from the
regulations (see 83 FR 52319). This document was published to allow the
DELAIR Memorial Railroad Bridge across the Delaware River, mile 104.6,
at Pennsauken Township, NJ, to continue to be remotely operated from
the Conrail South Jersey dispatch center in Mount Laurel, NJ, instead
of being operated by an on-site bridge tender, to allow sufficient time
for the Coast Guard to conduct an evaluation of the proposed
rulemaking. This temporary deviation commenced at 8 a.m. on October 16,
2018, and is scheduled to conclude at 7:59 a.m. on December 15, 2018.
    In total the Coast Guard received 26 comments posted to the docket
and eight reports with supporting documentation submitted by the bridge
owner on this rule. No comments were received during the third
temporary deviation between April 19, 2018, and October 16, 2018.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 499.
    The DELAIR Memorial Railroad Bridge across the Delaware River, mile
104.6, at Pennsauken Township, NJ, owned and operated by Conrail Shared
Assets, has a vertical clearance of 49 feet above mean high water in
the closed-to-navigation position. There is a daily average of 28 New
Jersey Transit trains and eight Conrail freight trains that cross the
bridge and a daily average of three bridge openings that allow one or
more vessels to transit through the bridge during each opening. The
bridge is normally maintained in the closed position due to the average
daily number of trains crossing the bridge. The operating schedule is
published in 33 CFR 117.716. This current operating schedule has been
in effect since 1984 and will not change with the implementation of
remote operation of the bridge. However, within this modified operating
regulation, section 117.716 has been restructured to clearly
distinguish the remote operation of the DELAIR Memorial Railroad
Bridge. This modified operating regulation allows the bridge to be
operated remotely from the bridge owner's South Jersey dispatch center
in Mount Laurel, NJ.
    The Delaware River is used by a variety of vessels, including deep
draft commercial vessels, tug and barge traffic, recreational vessels,
and public vessels, including military vessels of various sizes. The
three-year average number of bridge openings and maximum number of
bridge openings by month and overall for 2013 through 2015, as drawn
from the data contained in the bridge tender logs, is presented below.

------------------------------------------------------------------------
                                              Average         Maximum
                  Month                      openings        openings
------------------------------------------------------------------------
January.................................              73              88
February................................              54              56
March...................................              80              94
April...................................              55              68
May.....................................              60              67
June....................................              60              71
July....................................             122             162
August..................................             112             138
September...............................             143             201
October.................................             109             117
November................................             100             116
December................................             100             122
Monthly.................................              89             201
Daily...................................               3               7
------------------------------------------------------------------------

    The bridge owner and the maritime community have been working
together since 2013 in an effort to incorporate sensors and other
technologies into the bridge and the Conrail South Jersey dispatch
center to allow for the safe and effective remote operation of the
bridge.

IV. Discussion of Comments and Changes to the Final Rule

    During the initial and second temporary deviation periods between
April 24, 2017, and April 19, 2018, 26 comments were received,
including three duplicate comments, one process comment, and two
comments not related to this rule. No comments were received during the
third temporary deviation period between April 19, 2018, and October
16, 2018.
    Comments were received from six professional mariners between
December 7, 2017, and January 11, 2018, during the second temporary
deviation period. These comments expressed concerns associated with the
remote operation center's (1) failure to provide timely replies to
mariner's requests for a bridge opening, (2) failure to follow
established communications protocols, (3) unprofessional responses to
mariner's requests and a perception of ineffectual management and a
cultural bias against the needs of maritime transportation. These
comments were in response to the deficiencies observed during the
second temporary deviation period and were observed and reported during
the first temporary deviation period, along with corrective actions
taken by the bridge owner. Following a review of these comments, the
bridge owner acknowledged the recurring deficiencies in the remote
operation of the bridge related to human performance factors and
management, and reported that additional corrective actions were taken.
The Coast Guard found that the bridge owner's actions taken to address
the comments received from professional mariners have been
satisfactory, given the bridge was operated safely and effectively
during the third temporary deviation, which included 681 bridge
openings, without further comment from any mariners.
    During the first temporary deviation period, comments were received
from the Brotherhood of Maintenance of Way Employees Division of the
International Brotherhood of Teamsters that: (1) Questioned the remote
operation center's capability to safely and effectively operate the
bridge, (2) indicated that bridge tenders were currently performing on-
site bridge maintenance, inspection and repair functions that would no
longer be performed at the required frequencies, and (3) reported
multiple remote operation system failure conditions as defined in the
notice of proposed rulemaking. The bridge owner advised the Coast Guard
that on-site bridge tenders were not responsible for performing on-site
bridge maintenance, inspection or repairs functions and that those
functions would continue to be performed by qualified personnel. In
reviewing the other two comments above in conjunction with the details
concerning the remote operation of the bridge during the second and
third temporary deviation periods, the Coast Guard has found that the
remote operation center is capable of safely and effectively
controlling the bridge and early remote operation system failures have
been overcome by the bridge owner's corrective actions.
    The Delaware Riverkeeper Network submitted comments during the
first temporary deviation period indicating that: (1) They were opposed
to the regulation based on increased potential for negative
environmental impacts to local and regional communities, (2) human
oversight via an on-site bridge tender should not be replaced by a
remote device, (3) the provision for qualified personnel to return and
operate the bridge within 60 minutes was not considered an adequate
response time, and (4) they believed that the proposed rule was a
significant regulatory action based on increased potential for negative
environmental impacts. The Coast Guard reviewed these comments and
found that there is no evidence to support that remote operation of the
bridge increases the potential for negative environmental impacts and
is not likely to have an adverse effect to the environment in a
material way, therefore the proposed rule is not a significant
regulatory action. The Coast Guard also found that the remote operation
system does not replace human oversight, and the 60-minute response
time was tested throughout the three temporary deviation periods
resulting in effective restoration of the remote operation system of
the bridge and no adverse impact on navigation.
    12 comments expressed concerns associated with general safety and
security of the bridge and the potential inability of remote operation
center operators to safely operate the bridge. The Coast Guard found
that: (1) Although the on-site bridge tender's duties only include
operation of the bridge, the bridge owner's implementation of
additional safety and security technologies, in conjunction with the
remote operation center's capabilities in providing visibility of the
bridge and waterway to the remote operation center operator, adequately
addressed the general safety and security related comments.
Additionally, the bridge operated safely and effectively during the
three temporary deviation periods, which included 2,597 bridge
openings.
    The Coast Guard finds that the comments received do not require any
changes in the regulatory text as presented in the NPRM.

V. Discussion of Final Rule

    This operating regulation allows the bridge to be operated remotely
from the bridge owner's South Jersey dispatch center in Mount Laurel,
NJ. The remote operation system includes eight camera views (four
marine and four rail), two forward-looking infrared equipped camera
views (marine), marine radar, a dedicated telephone line for bridge
operations, radio telephone on VHF-FM channels 13 and 16, and an
automated identification system (AIS) transmitter to provide bridge
status. The AIS transmitter is installed on the New Jersey side of the
bridge at the bridge and land intersection in approximate position
39[deg]58'50.52'' N (39.9807), 75[deg]03'58.75'' W (-75.06632). The AIS
transmitter is assigned maritime mobile service identity (MMSI) number
993663001 and provides the status of the bridge (open/closed/
inoperative) via the name transmitted by the private aids to navigation
as DELAIR BRG-OPEN (fully open and locked position, channel light
green), DELAIR BRG-CLOSED (other than fully open, not inoperative), or
DELAIR BRG-INOP (other than fully open, inoperative). The AIS
transmitter transmits the bridge status every two minutes and upon a
change in bridge status.
    The remote operation system is designed to provide greater or equal
visibility of the waterway and bridge and in signals (communications)
via sound and visual signals and radio telephone (voice) via VHF-FM
channels 13 and 16 compared to the on-site bridge tender. The remote
operation system also incorporates real-time bridge status via AIS
signal to aid mariners in voyage planning and navigational decision-
making, a dedicated telephone line<PHONE_NUMBER> for bridge
operations, and push-to-talk (PTT) capability on VHF-FM channel 13.
    The signals for the remote operation center or on-site bridge
tender to respond to a sound signal for a bridge opening include: (1)
When the draw can be opened immediately--a sound signal of one
prolonged blast followed by one short blast and illumination of a fixed
white light not more than 30 seconds after the requesting signal, and
(2) when the draw cannot be opened immediately--five short blasts
sounded in rapid succession and illumination of a fixed red light not
more 30 seconds after the vessel's opening signal. The signals for the
remote operation center or on-site bridge tender to respond to a visual
signal for a bridge opening include: (1) When the draw can be opened
immediately--illumination of a fixed white light not more than 30
seconds after the requesting signal, and (2) when the draw cannot be
opened immediately--illumination of a fixed red light not more 30
seconds after the vessel's opening signal. The fixed white light will
remain illuminated until the bridge reaches the fully open position.
The fixed white and red lights will be positioned on the east (New
Jersey) bridge abutment adjacent to the navigation span.
    Vessels that require an opening shall continue to request an
opening via the methods defined in 33 CFR 117.15(b) through (d) (sound
or visual signals or radio telephone (VHF-FM) voice communications),
via telephone at<PHONE_NUMBER>, or via push-to-talk (PTT) on VHF-FM
channel 13. Vessels may push the PTT button five times while on VHF-FM
channel 13 to request an opening.
    The remote operation system will be considered in a failed
condition and qualified personnel will return and operate the bridge
within 60 minutes if any of the following conditions are found: (1) The
remote operation system becomes incapable of safely and effectively
operating the bridge from the remote operation center, (2) visibility
of the waterway or bridge is degraded to less than equal that of an on-
site bridge tender (all eight camera views are required), (3) signals
(communications) via sound or visual signals or radio telephone (voice)
via VHF-FM channels 13 or 16 become inoperative, or (4) AIS becomes
inoperative.

VI. Regulatory Analyses

    We developed this rule after considering numerous statutes and
Executive Orders related to rulemaking. Below we summarize our analyses
based on a number of these statutes and Executive Orders, and we
discuss First Amendment rights of protesters.

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. Executive Order 13771 directs agencies to control
regulatory costs through a budgeting process. This rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, it has not been reviewed by the Office of
Management and Budget (OMB) and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
    This regulatory action determination is based on the fact that the
operating schedule published in 33 CFR 117.716 will not change with the
remote operation of the bridge and the remote operation of the bridge
is not likely to have an adverse effect to the environment.

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 received zero comments from the Small Business
Administration on this rule. The Coast Guard certifies under 5 U.S.C.
605(b) that this rule will 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 V.A
above, this rule will not have a significant economic impact on any
vessel owner or operator.
    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 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,
above.
    Small businesses may send comments on the actions of Federal
employees who enforce, or otherwise determine compliance with, Federal
regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small
entities that question or complain about this rule or any policy or
action of the Coast Guard.

C. Collection of Information

    This rule calls for no new collection of information under the
Paperwork

Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Government

    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 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 rule does not have tribal implications under Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it does 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.

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 rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble. The Coast Guard received zero comments concerning the
above Act.

F. Environment

    We have analyzed this 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
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. This rule simply promulgates the operating regulations or
procedures for drawbridges. This action is categorically excluded from
further review, under figure 2-1, paragraph (32)(e), of the
Instruction.
    A Record of Environmental Consideration and a Memorandum for the
Record are not required for this rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the For Further
Information Contact section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.

List of Subjects in 33 CFR Part 117

    Bridges.

    For the reasons discussed in the preamble, the Coast Guard amends
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. 0170.1.

0
2. Revise Sec.  117.716 to read as follows:

Sec.  117.716  Delaware River.

    (a) The following apply to all drawbridges across the Delaware
River:
    (1) The draws of railroad bridges need not be opened when there is
a train in the bridge block approaching the bridge with the intention
of crossing or within five minutes of the known time of the passage of
a scheduled passenger train.
    (2) The opening of a bridge may not be delayed more than five
minutes for a highway bridge or 10 minutes for a railroad bridge after
the signal to open is given.
    (3) The owners of drawbridges shall provide and keep in good
legible condition two board gages painted white with black figures not
less than six inches high to indicate the vertical clearance under the
closed draw at all stages of the tide. The gages shall be so placed on
the bridge that they are plainly visible to operators of vessels
approaching the bridge either up or downstream.
    (b) The draw of the Conrail Memorial Railroad Bridge, mile 104.6,
at Pennsauken Township, NJ shall be operated as follows:
    (1) The bridge will be remotely operated from the Conrail South
Jersey dispatch center in Mount Laurel, NJ, unless the remote operation
system is in a failed condition.
    (2) An AIS transmitter has been installed on the New Jersey side of
the bridge at the bridge and land intersection in approximate position
39[deg]58'50.52'' N (39.9807), 75[deg]03'58.75'' (-75.06632). The AIS
transmitter is assigned maritime mobile service identity (MMSI) number
993663001. The status of the bridge (open/closed/inoperative) will be
provided via the name transmitted by the AIS private aids to navigation
as DELAIR BRG-OPEN (fully open and locked position, channel light
green), DELAIR BRG-CLOSED (other than fully open, not inoperative), or
DELAIR BRG-INOP (other than fully open, inoperative). The AIS
transmitter will transmit the bridge status every two minutes and upon
a change in the bridge status.
    (3) The remote operation system will be considered in a failed
condition and qualified personnel will return and operate the bridge
within 60 minutes if any of the following conditions are found:
    (i) The remote operation system becomes incapable of safely and
effectively operating the bridge from the remote operation center; or
    (ii) Visibility of the waterway or bridge is degraded to less than
equal that of an on-site bridge tender; or
    (iii) Signals (communications) via sound or visual signals or radio
telephone (voice) via VHF-FM channels 13 or 16 become inoperative; or
    (iv) AIS becomes inoperative.
    (4) Vessels that require an opening shall continue to request an
opening via the methods defined in Sec.  117.15(b) through (d) (sound
or visual signals or radio telephone (VHF-FM) voice communications),
via telephone at<PHONE_NUMBER>, or via push-to-talk (PTT) on VHF-FM
channel 13. Vessels may push the PTT button five times while on VHF-FM
channel 13 to request an opening.
    (5) The signals for the remote operation center or on-site bridge
tender to respond to a sound signal for a bridge opening include:
    (i) When the draw can be opened immediately--a sound signal of one
prolonged blast followed by one short blast and illumination of a fixed
white light not more than 30 seconds after the requesting signal; or
    (ii) When the draw cannot be opened immediately--five short blasts
sounded in rapid succession and illumination of a fixed red light not
more 30 seconds after the vessel's opening signal.
    (6) The signals for the remote operation center or on-site bridge
tender to respond to a visual signal for a bridge opening include:
    (i) When the draw can be opened immediately--illumination of a
fixed white light not more than 30 seconds after the requesting signal;
or

    (ii) When the draw cannot be opened immediately--illumination of a
fixed red light not more 30 seconds after the vessel's opening signal.
    (7) The fixed white light will remain illuminated until the bridge
reaches the fully open position. The fixed white and red lights will be
positioned on the east (New Jersey) bridge abutment adjacent to the
navigation span.

    Dated: November 14, 2018.
G.G. Stump,
Captain, U.S. Coast Guard, Acting Commander, Fifth Coast Guard
District.
[FR Doc. 2018-25544 Filed 11-21-18; 8:45 am]
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