[Federal Register Volume 81, Number 142 (Monday, July 25, 2016)]
[Rules and Regulations]
[Pages 48327-48329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17541]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2016-0256]
RIN 1625-AA09


Drawbridge Operation Regulation; Fox River, DePere to Oshkosh, WI

AGENCY: Coast Guard, DHS.

ACTION:  Final rule.

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SUMMARY: The Coast Guard is modifying the operating schedule for all 
drawbridges over the Fox River between DePere, WI and Oshkosh, WI. This 
rule will establish drawbridge schedules that coincide with lock 
schedules during the boating season and standard winter drawbridge 
schedules.

DATES: This rule is effective August 24, 2016.

ADDRESSES:  To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type USCG-
2016-0256. 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. Lee D. Soule, Bridge Management Specialist, Ninth 
Coast Guard District; telephone 216-902-6085, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
E.O. Executive Order
FR Federal Register
NEPA National Environmental Policy Act of 1969
NPRM Notice of proposed rulemaking
RFA Regulatory Flexibility Act of 1980
SNPRM Supplemental notice of proposed rulemaking
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code
WIS-DOT Wisconsin Department of Transportation
FRNSA Fox River Navigational System Authority
CN-RR Canadian National Railroad

II. Background Information and Regulatory History

    On May 6, 2016, we published a notice of proposed rulemaking (NPRM) 
entitled Drawbridge Operation Regulation; Fox River, DePere to Oshkosh, 
WI, in the Federal Register (81 FR 27373). We did receive one comment 
on this rule.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 499. 
Currently, the regulation for Fox River drawbridges (33 CFR 117.1087) 
includes the opening schedule for drawbridges in Green Bay, WI, where 
large commercial vessel traffic continues to transit. This rule does 
not include any changes to the schedules for drawbridges over the 
commercial ship channel in Green Bay.
    The sections of the current regulation that includes all other 
drawbridges between river mile 7.13 in DePere, WI at the DePere 
Pedestrian bridge, to river mile 58.3 in Oshkosh, WI, describe 
inconsistent dates and times for required drawbridge openings, 
particularly for the four highway drawbridges in Oshkosh. They also 
include reference to the George Street bridge at mile 7.27. The George 
Street bridge has been removed in the past 15 years. In the current 
regulation, the Oshkosh drawbridges contain exemptions during certain 
dates and times where the drawbridges are not required to open for 
vessels or vessels must provide advance notice prior to passing during 
nighttime hours.
    This rule establishes the requirement for all drawbridges, except 
the Canadian National Railroad (CN-RR) bridge at mile 55.72 in Oshkosh, 
to open on signal between the hours of 8 a.m. and midnight each day 
from April 27 to October 7 every year. This schedule will match the 
lock schedule established by FRNSA and drawbridge schedules used by 
WIS-DOT. Between the hours of midnight and 8 a.m., except for the CN-RR 
bridge in Oshkosh, all drawbridges would open for vessels if at least 
2-hours advance notice of arrival is provided.
    The CN-RR bridge at mile 55.72 in Oshkosh is located where Fox 
River feeds into the southwest section of Lake Winnebago. The portion 
of Fox River in the Oshkosh area, and Lake Winnebago, are among the 
busiest portions of the Fox River System for recreational vessel 
traffic. The CN-RR bridge provides 6 feet of vertical clearance in the 
closed position and prevents most vessels from passing under the 
bridge, thereby requiring the drawbridge to open regularly for vessels. 
This is also the location of first responders and public safety vessels 
that may require the bridge to open at any time to perform rescue or 
emergency operations on Lake Winnebago. Vessels in distress or seeking 
shelter from weather on Lake Winnebago may also need the CN-RR bridge 
to open at any time. A delay in bridge openings at this location may 
endanger life or property and is therefore exempted from the proposed 
2-hour advance notice requirement from vessels for all other 
drawbridges between midnight and 8 a.m.
    All drawbridges would be required to open if at least 12-hours 
advance notice is provided prior to passing between October 8 and April 
26 each year.
    This rule removes the George Street bridge from the regulation, 
establishes consistent annual dates for drawbridge schedules between 
river miles 7.13 and 58.3, eliminates currently exempted bridge opening 
times during certain days and times in Oshkosh, makes permanent the 
requirement for vessels to provide 2-hours advance notice between 
midnight and 8 a.m., and establishes the winter bridge operating 
schedules throughout the entire river system.
    The dates, times, and conditions have been employed by local 
authorities for approximately 10 years and are generally accepted by 
vessel operators in the area as established conditions. The dates, 
times, and conditions have also been reviewed and accepted by WIS-DOT 
and FRNSA during the development of this rule.

IV. Discussion of Comments, Changes and the Final Rule

    The Coast Guard provided a comment period of 45 days and received 
one comment. Canadian National Railway Company (CN-RR) wished to 
clarify for the record that the bridge described in the NPRM as the 
``CN-RR bridge at Mile 55.72 over Fox River in Oshkosh, WI'' should 
reflect Wisconsin Central Ltd. as the entity holding common carrier 
responsibilities at this location. The Coast Guard recognizes that 
Wisconsin Central, Ltd. is owned by CN-RR, but for consistency in 
describing bridge owners throughout the Fox River system in official 
publications, and since the bridges are locally known and referred to 
as ``Canadian National'' bridges, we will continue to describe the 
railroad drawbridge at Mile 55.72 in Oshkosh as the CN-RR bridge.
    Additionally, CN-RR commented on the disparity of proposed bridge 
operations between nearby highway bridges and the CN-RR bridge at Mile 
55.72 in Oshkosh, WI. The NPRM excluded the CN-RR bridge at Mile

[[Page 48328]]

55.72 in Oshkosh from operating with the same schedule as the nearby 
highway bridges requiring 2-hours advance notice for openings between 
the hours of midnight and 8am due to the low vertical clearance (6-
feet) of the bridge in the closed position that restricts most vessels 
from passing underneath, the proximity of the CN-RR bridge at the 
entrance to Fox River from Lake Winnebago, the location of nearby 
first-responders, and the need to open for vessels seeking shelter from 
weather on Lake Winnebago. The exclusion of the CN-RR bridge from the 
same conditions as the nearby highway bridges in Oshkosh is due to 
safety concerns for vessel operators and is retained in this final 
rule.

V. 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 13563 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. 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.
    This regulatory action determination is based on the ability that 
vessels can still transit the bridge given advanced notice during times 
when vessel traffic is at its lowest. This rule provides a drawbridge 
schedule that is virtually the same as has been used by vessel 
operators in the area for approximately 10 years.

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 did not receive any comments from the Small 
Business Administration on this rule. The Coast Guard certifies under 5 
U.S.C. 605(b) that this rule would not have a significant economic 
impact on a substantial number of small entities. This rule 
standardizes drawbridge schedules that have been in place and would not 
have a significant economic impact on any vessel owner or operator 
because the bridges will open with advance notice during low traffic 
times on the waterway or when ice conditions hinder normal navigation.
    While some owners or operators of vessels intending to transit the 
bridges may be small entities, for the reasons stated in section V.A 
above, this rule would 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 (Public Law 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 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.

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.

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.
    Under figure 2-1, paragraph (32)(e), of the Instruction, an 
environmental analysis checklist and a categorical exclusion 
determination 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.


[[Page 48329]]


    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. In Sec.  117.1087, revise paragraphs (b) and (c) to read as follows:


Sec.  117.1087  Fox River.

* * * * *
    (b) All drawbridges between mile 7.13 in DePere and mile 58.3 in 
Oshkosh, except the Canadian National Railroad bridge at mile 55.72, 
shall open as follows:
    (1) From April 27 through October 7, the draws shall open on 
signal, except between the hours of midnight and 8 a.m., the draws 
shall open if at least 2-hours advance notice is given.
    (2) From October 8 through April 26, the draws shall open if at 
least 12-hours advance notice is given.
    (c) The draw of the Canadian National Railroad bridge at mile 55.72 
shall open on signal, except from October 8 through April 26; the draw 
shall open if at least 12-hours advance notice is given.
* * * * *

    Dated: July 12, 2016.
J.E. Ryan,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2016-17541 Filed 7-22-16; 8:45 am]
 BILLING CODE 9110-04-P