Drawbridge Operation Regulation; New River, Fort Lauderdale, FL, 41932-41935 [2020-14578]
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41932
Proposed Rules
Federal Register
Vol. 85, No. 134
Monday, July 13, 2020
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
II. Background, Purpose and Legal
Basis
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2019–0955]
RIN 1625–AA09
Drawbridge Operation Regulation; New
River, Fort Lauderdale, FL
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard proposes to
change the operating schedule that
governs the Florida East Coast (FEC)
Railroad Bridge across the New River,
mile 2.5, at Fort Lauderdale, Florida.
This proposed change will allow the
drawbridge to operate on a more
predictable schedule. This proposed
action is expected to better serve the
reasonable needs of both vessel and rail
traffic.
DATES: Comments and related material
must reach the Coast Guard on or before
August 12, 2020.
ADDRESSES: You may submit comments
identified by docket number USCG–
2019–0955 using Federal e-Rulemaking
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 rule, call or
email LT Samuel Rodriguez-Gonzalez,
U.S. Coast Guard, Sector Miami
Waterways Management Division;
telephone 305–535–4307, email
Samuel.Rodriguez-Gonzalez@uscg.mil.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
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)
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§ Section
U.S.C. United States Code
FL Florida
FECR Florida East Coast Railway
FEC Florida East Coast
VTUS–F Virgin Trains USA-Florida, LLC
MIASF Marine Industries Association of
South Florida
Virgin Train USA Florida (VTUS–F),
with support from the bridge owner,
Florida East Coast Railway (FECR),
requested a change to the drawbridge
operating schedule due to an increase in
rail traffic in recent years. The operating
schedule for the bridge set forth in 33
CFR 117.313(c) no longer balances the
needs of vessel and rail traffic.
The Florida East Coast (FEC) Railroad
Bridge across the New River, mile 2.5,
at Fort Lauderdale, Florida is a singleleaf bascule railroad bridge with a fourfoot vertical clearance at mean high
water in the closed position. Traffic on
the waterway includes both commercial
and recreational vessels.
On January 23, 2020, the Coast Guard
published a Test Deviation entitled
Drawbridge Operation Regulation; New
River, Fort Lauderdale, FL in the
Federal Register (85 FR 3852). We
received seven comments.
Five comments were against the
proposed changes. Two comments
stated that sufficient data was not
presented to support a six-month test
deviation. The Coast Guard published
the Test Deviation based on data
provided by the maritime community
regarding the unpredictability of
openings and the failure of the bridge
owner to comply with the drawbridge
operating regulation. The data, which
was reported to Coast Guard Sector
Miami and the Seventh District,
provided sufficient information to
indicate a clear need to publish a Test
Deviation to address a need for
predictability to facilitate reasonable
maritime traffic. Three comments
addressed a concern that vessel
operators would have to wait up to 50
minutes for the bridge to open and
stated there should be equal access to
the waterway. This interpretation of the
proposed rule does not accurately
reflect the regulation or the Coast
Guard’s intent. The bridge will remain
in the open position and available to
mariners when trains are not crossing,
except during inspections and minor
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repairs that should not interfere with
the 10-minute opening or, at certain
times, an additional 10-minute opening.
The Coast Guard must ensure that the
reasonable needs of navigation are met,
not necessarily all the needs. The Test
Deviation provided a predictable
schedule for maritime traffic that
ensured the reasonable needs of
navigation could be met.
The bridge owner provided comments
in support of implementing the test
deviation as the permanent operating
schedule for the FEC Railroad Bridge.
They stated that predictable and
sufficient openings, as well as sufficient
closures to facilitate rail operations,
appeared to be sufficient to satisfy both
the marine community and railroads.
Additionally, they provided an
abbreviated vessel traffic study during
the month of March 2020 conducted by
an independent company. Data was
collected between March 3 and March
18, 2020, via recorded video from the
Marine Industries Association of South
Florida’s (MIASF) New River Live Feed
camera mounted west of the bridge and
directed east toward the bridge. A twoday field survey was conducted to test
the validity of the data collected during
the video review. The contractor
observed 1,786 boats over the entire
study period, with an average queue
time of 4 minutes. The majority of
boaters did not queue due to FEC bridge
closure: 73% to 80% of boats crossed
through the open bridge immediately
upon approach during the Video Review
and Field Survey, respectively. For the
20% to 27% of boaters who queued, the
average queue time ranged from 10 to 17
minutes. Over the study period, the
average queue time for all observed
boats ranged from 2 to 5 minutes.
MIASF provided comments in
support of the test deviation; however,
they stated that long overdue
improvements in infrastructure are
needed to overcome the unreasonable
obstruction of the waterway and the
fundamental conflict that an increase in
train operations poses to marine
operations. This comment is outside the
scope of this NPRM. MIASF indicated
measures instituted by the test deviation
have done much to address the
intermodal conflicts, but also suggested
minor modifications. MIASF
specifically addressed the lowering of
the drawbridge after the published
schedule when no rail traffic is passing
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Federal Register / Vol. 85, No. 134 / Monday, July 13, 2020 / Proposed Rules
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and an additional requirement to
promptly raise the drawbridge once rail
traffic has cleared the drawbridge. The
proposed rule does allow for the bridge
to remain in the closed to navigation
position for inspections and minor
repairs that do not interfere with the
published schedule. Additionally, 33
CFR117.9—Delaying opening of a draw,
does note ‘‘Trains are usually controlled
by the block method . . . Land and
water traffic should pass over or through
the draw as soon as possible in order to
prevent unnecessary delays in the
opening and closure of the draw.’’
MIASF also addressed drawbridge
maintenance management, general
communications and how to ensure the
marine community is informed. The
proposed rule requires the bridge owner
to maintain a website and mobile
application that displays required
opening times, a 24-hour advance notice
of the schedule and to the extent
reasonably practicable, at least 60minutes advance notice of schedule
changes or delays. Additionally, the
proposed rule requires the bridge owner
receive Coast Guard approval prior to
engaging in routine maintenance that
may affect the operating schedule.
Lastly, concerns regarding the bridge
owner’s course of action in case of a
vessel or facility fire, as well as other
emergencies were raised. When an
emergency situation is declared, the
bridge owner is required to follow 33
CFR117.31 which addresses drawbridge
operations for emergency vehicles and
emergency vessels.
FECR requested a modification to the
proposed rule for overnight drawbridge
operations. FECR stated that during
overnight hours when vessel traffic is
minimal, the 10-minute opening
requirement every hour should be
removed. This proposed rule removes
the 10-minute opening requirement
between midnight and 4:59 a.m.,
however the requirement stating the
bridge shall not be closed to navigation
for more than 60 consecutive minutes
remains at all times.
III. Discussion of Proposed Rule
The proposed rule will allow the
drawbridge to operate on a more
predictable schedule. Under this
proposed regulation, the draw of the
FEC Railroad Bridge would provide a
pre-determined 10-minute opening
between 5:00 a.m. and 11:59 p.m. An
additional 10-minute opening would be
provided at various times throughout
the day. A mobile application and
website shall be maintained depicting
the operational status of the drawbridge.
These proposed changes are necessary
to improve the flow of marine traffic on
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the New River by providing predictable,
pre-determined openings and increased
communications through various media
sources.
This proposed change would still
allow vessels that are capable of
transiting under the bridge, without an
opening, to do so at any time while
taking into account the reasonable needs
of other modes of transportation.
Vessels in distress and public vessels of
the United States must be allowed to
pass at any time or as soon as the train
has cleared 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 and we discuss First
Amendment rights of protestors.
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 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) and
pursuant to OMB guidance it is exempt
from the requirements of Executive
Order 13771.
This regulatory action determination
is based on the ability that vessels can
continue to transit the bridge at
designated times throughout the day
and when trains are not crossing or
when a vessel is in distress.
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
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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.
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Federal Register / Vol. 85, No. 134 / Monday, July 13, 2020 / Proposed Rules
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, Table3–1 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.
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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.
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
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document to which each comment
applies, and provide a reason for each
suggestion or recommendation.
We encourage you to submit
comments through the Federal
eRulemaking Portal at https://
www.regulations.gov. 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.
We accept anonymous comments. All
comments received will be posted
without change to https://
www.regulations.gov and will include
any personal information you have
provided. https://www.regulations.gov/
privacynotice. 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).
Documents mentioned in this NPRM
as being available in this docket and all
public comments, will be in our online
docket at https://www.regulations.gov
and can be viewed by following that
website’s instructions. 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.
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. 0170.1.
2. Revise § 117.313 paragraph (c) to
read as follows:
■
§ 117.313
New River
*
*
*
*
*
(c) The draw Florida East Coast (FEC)
Railroad Bridge across the New River,
mile 2.5, at Fort Lauderdale shall
operate as follows:
(1) The drawbridge shall be
maintained in the fully open-tonavigation position for vessels at all
times, except during periods when it is
closed for the passage of rail traffic,
inspections and minor repairs that do
not interfere with the pre-determined
opening times outlined in this part.
(2) The drawbridge shall not be closed
to navigation for more than 60
consecutive minutes.
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(3) The drawbridge shall open and
remain open to navigation for a fixed
10-minute period each hour from 5 a.m.
to 11:59 p.m., except that the
drawbridge shall be open at the
following times which shall serve as the
hourly fixed 10-minute period:
—7:00 a.m. until 7:10 a.m.
—9:00 a.m. until 9:10 a.m.
—4:00 p.m. until 4:10 p.m.
—6:00 p.m. until 6:10 p.m.
—10:00 p.m. until 10:10 p.m.
(i) Additionally, in each hour from
12:00 p.m. to 2:59 p.m., the drawbridge
shall open and remain open to
navigation for an additional 10-minute
period.
(ii) The 10-minute opening periods
shall be published on a quarterly basis
by the drawbridge owner and reflected
on the owner’s website and mobile
application.
(4) The drawbridge shall have a
drawbridge tender onsite at all times
who is capable of physically tending
and operating the drawbridge by local
control, if necessary, or when ordered
by the Coast Guard.
(i) The drawbridge tender shall
provide estimated times of drawbridge
openings and closures, upon request.
(ii) Operational information will be
provided 24 hours a day on VHF–FM
channels 9 and 16 or by telephone at
(305) 889–5572. Signs shall be posted
visible to marine traffic and displaying
VHF radio contact information, website
and application information, and the
telephone number for the bridge tender.
(5) In the event of a drawbridge
operational failure, or other emergency
circumstances impacting normal
drawbridge operations, the drawbridge
owner shall immediately notify the
Coast Guard Captain of the Port Miami
and provide an estimated time of repair
and return to normal operations.
(6) A drawbridge log shall be
maintained including drawbridge
opening and closing times. The
drawbridge log should include reasons
for those drawbridge closings that
interfere with scheduled openings in
this part. This log shall be provided to
the Coast Guard upon request.
(7) A website and mobile application
shall be maintained to publish:
(i) Drawbridge opening times required
by this subsection;
(ii) Timely updates to schedules;
(iii) At least 24-hour advance notice
for each schedule in order to facilitate
planning by maritime operators; and
(iv) To the extent reasonably
practicable, at least 60-minutes advance
notice of schedule changes or delays.
(8) The drawbridge shall display the
following lights:
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Federal Register / Vol. 85, No. 134 / Monday, July 13, 2020 / Proposed Rules
(i) When the drawbridge is in the fully
open position, green lights shall be
displayed to indicate that vessels may
pass.
(ii) When rail traffic approaches the
block signal, the lights shall go to
flashing red, then the drawbridge lowers
and locks, and the lights shall remain
flashing red.
(iii) After the rail traffic has cleared
the drawbridge, the drawbridge shall
open and the lights return to green.
*
*
*
*
*
Dated: June 29, 2020
Eric C. Jones,
Rear Admiral, U.S. Coast Guard, Commander
Seventh Coast Guard District.
[FR Doc. 2020–14578 Filed 7–10–20; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 162
[Docket Number USCG–2019–0899]
RIN 1625–AC04
Inland Waterways Navigation: St.
Marys River, Sault Ste. Marie, Michigan
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard is proposing
to exempt vessels under 20 meters (65
feet) in length operating in the St.
Mary’s River along Michigan’s eastern
Upper Peninsula from certain speed
rules. Exempting such vessels from
these rules is necessary because
enforcement is impractical and the rules
impede the operations of public
response vessels. We invite your
comments on this proposed rulemaking.
DATES: Comments and related material
must be received by the Coast Guard on
or before August 12, 2020.
ADDRESSES: You may submit comments
identified by docket number USCG–
2019–0899 using the Federal
eRulemaking Portal at https://
www.regulations.gov. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
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SUMMARY:
If
you have questions about this proposed
rulemaking, call or email LTJG Blake
Bonifas, Waterways Management, Ninth
Coast Guard District, Cleveland, OH,
telephone (216) 902–6066, email
Blake.E.Bonifas@uscg.mil.
FOR FURTHER INFORMATION CONTACT:
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SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background, Purpose, and Legal
Basis
The inland navigation rules for the St.
Marys River along Michigan’s eastern
Upper Peninsula are prescribed by 33
CFR 162.117. These rules include speed
limits for stretches of the St. Marys
River demarcated by lights.
U.S. Coast Guard Vessel Traffic
Services (VTS) St. Mary’s River
monitors and directs vessel traffic
movement within the VTS St. Marys
River area through a Vessel Movement
Reporting System (VMRS). This VTS
area overlaps the length of the St. Marys
River governed by the speed rules in
§ 162.117(g). The VMRS requires users,
generally including commercial vessels
of 20 meters or more, to report
information, including their position,
course, and speed. These users report
their information through radio
communications and Automatic
Identification System (AIS). Because
VTS St. Marys River tracks speed for
VMRS users, it can and does enforce the
speed rules in § 162.117(g) on these
users.
Many non-VMRS vessels transit the
length of the St. Marys River governed
by the speed rules in § 162.117(g).
These vessels generally include private
vessels under 20 meters. As non-VMRS
users, these vessels are not required to
report their speed to the VTS St. Marys
River. Additionally, unlike commercial
vessels of 20 meters or more, these
vessels are not required to operate with
AIS, the prevalent means of reporting
location, course, and speed to VTS St.
Marys River. Because the VTS St. Marys
River cannot track these non-VMRS
vessels, it cannot, realistically, enforce
the speed rules in § 162.117(g) on these
vessels.
The speed rules in § 162.117(g) also
impact the operational effectiveness of
public response vessels in the St. Marys
River. These vessels include small
boats, generally under 20 meters,
operated by the U.S. Coast Guard and
federal, Canadian, state, and local
partners. These small boats respond to
pollution incidents, marine casualties,
and perform search and rescue and law
enforcement operations throughout the
St. Marys River. These operations
require public vessels to deploy and be
on-scene rapidly. The speed rules
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41935
impede response times and degrade
operational effectiveness to the
detriment of the boating public and
industry.
Because the speed rules in 162.117(g)
are not enforceable on non-VMRS users
and impact operational effectiveness of
public response boats, this rule
proposes to exempt vessels under 20
meters (65 feet) from these speed rules.
This proposed exemption is not
anticipated to impact the St. Marys
River VTS, VMRS, or its users.
Additionally, it is not intended to
relieve vessels under 20 meters from the
responsibility to boat safely and exercise
good seamanship. This proposed rule is
issued under the authority of 46 U.S.C.
70034.
III. Discussion of Proposed Rule
The Coast Guard is proposing to
amend the speed rules in 33 CFR
162.117(g), because, as they are
currently written, they are too broad and
unnecessarily restrict vessel operations.
Specifically, this rule proposes to
exempt vessels under 20 meters (65 feet)
from the speed rules in 162.117(g). The
regulatory text we are proposing appears
at the end of this document.
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 a number of these statutes and
Executive orders and we discuss First
Amendment rights of protestors.
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 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), 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 we do not
anticipate that it will adversely affect
the economy, will not interfere with
other agencies, will not adversely alter
the budget of any grant of loan
recipients, and will not raise any novel
legal or policy issues. Rather, permitting
vessels under 20 meters to operate free
of the speed rules in 33 CFR 162.117(g)
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Agencies
[Federal Register Volume 85, Number 134 (Monday, July 13, 2020)]
[Proposed Rules]
[Pages 41932-41935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14578]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 85, No. 134 / Monday, July 13, 2020 /
Proposed Rules
[[Page 41932]]
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG-2019-0955]
RIN 1625-AA09
Drawbridge Operation Regulation; New River, Fort Lauderdale, FL
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard proposes to change the operating schedule that
governs the Florida East Coast (FEC) Railroad Bridge across the New
River, mile 2.5, at Fort Lauderdale, Florida. This proposed change will
allow the drawbridge to operate on a more predictable schedule. This
proposed action is expected to better serve the reasonable needs of
both vessel and rail traffic.
DATES: Comments and related material must reach the Coast Guard on or
before August 12, 2020.
ADDRESSES: You may submit comments identified by docket number USCG-
2019-0955 using Federal e-Rulemaking 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 rule,
call or email LT Samuel Rodriguez-Gonzalez, U.S. Coast Guard, Sector
Miami Waterways Management Division; telephone 305-535-4307, 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
FL Florida
FECR Florida East Coast Railway
FEC Florida East Coast
VTUS-F Virgin Trains USA-Florida, LLC
MIASF Marine Industries Association of South Florida
II. Background, Purpose and Legal Basis
Virgin Train USA Florida (VTUS-F), with support from the bridge
owner, Florida East Coast Railway (FECR), requested a change to the
drawbridge operating schedule due to an increase in rail traffic in
recent years. The operating schedule for the bridge set forth in 33 CFR
117.313(c) no longer balances the needs of vessel and rail traffic.
The Florida East Coast (FEC) Railroad Bridge across the New River,
mile 2.5, at Fort Lauderdale, Florida is a single-leaf bascule railroad
bridge with a four-foot vertical clearance at mean high water in the
closed position. Traffic on the waterway includes both commercial and
recreational vessels.
On January 23, 2020, the Coast Guard published a Test Deviation
entitled Drawbridge Operation Regulation; New River, Fort Lauderdale,
FL in the Federal Register (85 FR 3852). We received seven comments.
Five comments were against the proposed changes. Two comments
stated that sufficient data was not presented to support a six-month
test deviation. The Coast Guard published the Test Deviation based on
data provided by the maritime community regarding the unpredictability
of openings and the failure of the bridge owner to comply with the
drawbridge operating regulation. The data, which was reported to Coast
Guard Sector Miami and the Seventh District, provided sufficient
information to indicate a clear need to publish a Test Deviation to
address a need for predictability to facilitate reasonable maritime
traffic. Three comments addressed a concern that vessel operators would
have to wait up to 50 minutes for the bridge to open and stated there
should be equal access to the waterway. This interpretation of the
proposed rule does not accurately reflect the regulation or the Coast
Guard's intent. The bridge will remain in the open position and
available to mariners when trains are not crossing, except during
inspections and minor repairs that should not interfere with the 10-
minute opening or, at certain times, an additional 10-minute opening.
The Coast Guard must ensure that the reasonable needs of navigation are
met, not necessarily all the needs. The Test Deviation provided a
predictable schedule for maritime traffic that ensured the reasonable
needs of navigation could be met.
The bridge owner provided comments in support of implementing the
test deviation as the permanent operating schedule for the FEC Railroad
Bridge. They stated that predictable and sufficient openings, as well
as sufficient closures to facilitate rail operations, appeared to be
sufficient to satisfy both the marine community and railroads.
Additionally, they provided an abbreviated vessel traffic study during
the month of March 2020 conducted by an independent company. Data was
collected between March 3 and March 18, 2020, via recorded video from
the Marine Industries Association of South Florida's (MIASF) New River
Live Feed camera mounted west of the bridge and directed east toward
the bridge. A two-day field survey was conducted to test the validity
of the data collected during the video review. The contractor observed
1,786 boats over the entire study period, with an average queue time of
4 minutes. The majority of boaters did not queue due to FEC bridge
closure: 73% to 80% of boats crossed through the open bridge
immediately upon approach during the Video Review and Field Survey,
respectively. For the 20% to 27% of boaters who queued, the average
queue time ranged from 10 to 17 minutes. Over the study period, the
average queue time for all observed boats ranged from 2 to 5 minutes.
MIASF provided comments in support of the test deviation; however,
they stated that long overdue improvements in infrastructure are needed
to overcome the unreasonable obstruction of the waterway and the
fundamental conflict that an increase in train operations poses to
marine operations. This comment is outside the scope of this NPRM.
MIASF indicated measures instituted by the test deviation have done
much to address the intermodal conflicts, but also suggested minor
modifications. MIASF specifically addressed the lowering of the
drawbridge after the published schedule when no rail traffic is passing
[[Page 41933]]
and an additional requirement to promptly raise the drawbridge once
rail traffic has cleared the drawbridge. The proposed rule does allow
for the bridge to remain in the closed to navigation position for
inspections and minor repairs that do not interfere with the published
schedule. Additionally, 33 CFR117.9--Delaying opening of a draw, does
note ``Trains are usually controlled by the block method . . . Land and
water traffic should pass over or through the draw as soon as possible
in order to prevent unnecessary delays in the opening and closure of
the draw.'' MIASF also addressed drawbridge maintenance management,
general communications and how to ensure the marine community is
informed. The proposed rule requires the bridge owner to maintain a
website and mobile application that displays required opening times, a
24-hour advance notice of the schedule and to the extent reasonably
practicable, at least 60-minutes advance notice of schedule changes or
delays. Additionally, the proposed rule requires the bridge owner
receive Coast Guard approval prior to engaging in routine maintenance
that may affect the operating schedule. Lastly, concerns regarding the
bridge owner's course of action in case of a vessel or facility fire,
as well as other emergencies were raised. When an emergency situation
is declared, the bridge owner is required to follow 33 CFR117.31 which
addresses drawbridge operations for emergency vehicles and emergency
vessels.
FECR requested a modification to the proposed rule for overnight
drawbridge operations. FECR stated that during overnight hours when
vessel traffic is minimal, the 10-minute opening requirement every hour
should be removed. This proposed rule removes the 10-minute opening
requirement between midnight and 4:59 a.m., however the requirement
stating the bridge shall not be closed to navigation for more than 60
consecutive minutes remains at all times.
III. Discussion of Proposed Rule
The proposed rule will allow the drawbridge to operate on a more
predictable schedule. Under this proposed regulation, the draw of the
FEC Railroad Bridge would provide a pre-determined 10-minute opening
between 5:00 a.m. and 11:59 p.m. An additional 10-minute opening would
be provided at various times throughout the day. A mobile application
and website shall be maintained depicting the operational status of the
drawbridge. These proposed changes are necessary to improve the flow of
marine traffic on the New River by providing predictable, pre-
determined openings and increased communications through various media
sources.
This proposed change would still allow vessels that are capable of
transiting under the bridge, without an opening, to do so at any time
while taking into account the reasonable needs of other modes of
transportation. Vessels in distress and public vessels of the United
States must be allowed to pass at any time or as soon as the train has
cleared 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 and we discuss
First Amendment rights of protestors.
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 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) and pursuant to OMB guidance it is exempt
from the requirements of Executive Order 13771.
This regulatory action determination is based on the ability that
vessels can continue to transit the bridge at designated times
throughout the day and when trains are not crossing or when a vessel is
in distress.
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.
[[Page 41934]]
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, Table3-1 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.
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.
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.
We encourage you to submit comments through the Federal eRulemaking
Portal at https://www.regulations.gov. 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.
We accept anonymous comments. All comments received will be posted
without change to https://www.regulations.gov and will include any
personal information you have provided. https://www.regulations.gov/privacynotice. 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).
Documents mentioned in this NPRM as being available in this docket
and all public comments, will be in our online docket at https://www.regulations.gov and can be viewed by following that website's
instructions. 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.
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. 0170.1.
0
2. Revise Sec. 117.313 paragraph (c) to read as follows:
Sec. 117.313 New River
* * * * *
(c) The draw Florida East Coast (FEC) Railroad Bridge across the
New River, mile 2.5, at Fort Lauderdale shall operate as follows:
(1) The drawbridge shall be maintained in the fully open-to-
navigation position for vessels at all times, except during periods
when it is closed for the passage of rail traffic, inspections and
minor repairs that do not interfere with the pre-determined opening
times outlined in this part.
(2) The drawbridge shall not be closed to navigation for more than
60 consecutive minutes.
(3) The drawbridge shall open and remain open to navigation for a
fixed 10-minute period each hour from 5 a.m. to 11:59 p.m., except that
the drawbridge shall be open at the following times which shall serve
as the hourly fixed 10-minute period:
--7:00 a.m. until 7:10 a.m.
--9:00 a.m. until 9:10 a.m.
--4:00 p.m. until 4:10 p.m.
--6:00 p.m. until 6:10 p.m.
--10:00 p.m. until 10:10 p.m.
(i) Additionally, in each hour from 12:00 p.m. to 2:59 p.m., the
drawbridge shall open and remain open to navigation for an additional
10-minute period.
(ii) The 10-minute opening periods shall be published on a
quarterly basis by the drawbridge owner and reflected on the owner's
website and mobile application.
(4) The drawbridge shall have a drawbridge tender onsite at all
times who is capable of physically tending and operating the drawbridge
by local control, if necessary, or when ordered by the Coast Guard.
(i) The drawbridge tender shall provide estimated times of
drawbridge openings and closures, upon request.
(ii) Operational information will be provided 24 hours a day on
VHF-FM channels 9 and 16 or by telephone at (305) 889-5572. Signs shall
be posted visible to marine traffic and displaying VHF radio contact
information, website and application information, and the telephone
number for the bridge tender.
(5) In the event of a drawbridge operational failure, or other
emergency circumstances impacting normal drawbridge operations, the
drawbridge owner shall immediately notify the Coast Guard Captain of
the Port Miami and provide an estimated time of repair and return to
normal operations.
(6) A drawbridge log shall be maintained including drawbridge
opening and closing times. The drawbridge log should include reasons
for those drawbridge closings that interfere with scheduled openings in
this part. This log shall be provided to the Coast Guard upon request.
(7) A website and mobile application shall be maintained to
publish:
(i) Drawbridge opening times required by this subsection;
(ii) Timely updates to schedules;
(iii) At least 24-hour advance notice for each schedule in order to
facilitate planning by maritime operators; and
(iv) To the extent reasonably practicable, at least 60-minutes
advance notice of schedule changes or delays.
(8) The drawbridge shall display the following lights:
[[Page 41935]]
(i) When the drawbridge is in the fully open position, green lights
shall be displayed to indicate that vessels may pass.
(ii) When rail traffic approaches the block signal, the lights
shall go to flashing red, then the drawbridge lowers and locks, and the
lights shall remain flashing red.
(iii) After the rail traffic has cleared the drawbridge, the
drawbridge shall open and the lights return to green.
* * * * *
Dated: June 29, 2020
Eric C. Jones,
Rear Admiral, U.S. Coast Guard, Commander Seventh Coast Guard District.
[FR Doc. 2020-14578 Filed 7-10-20; 8:45 am]
BILLING CODE 9110-04-P