[Federal Register Volume 83, Number 244 (Thursday, December 20, 2018)]
[Rules and Regulations]
[Pages 65299-65301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27525]



[[Page 65299]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

Docket No. USCG-2018-0128]
RIN 1625-AA09


Drawbridge Operation Regulation; Ebey Slough, Marysville, WA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is modifying the operating schedule that 
governs the Burlington Northern Santa Fe Railroad (BNSF) Bridge 38.3 
across Ebey Slough, mile 1.5, at Marysville, WA. The modified schedule 
removes the bridge operator at the subject drawbridge, and will change 
from on-demand opening to a four hour advance notice for opening.

DATES: This rule is effective January 22, 2019.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov. Type USCG-
2018-0128 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 Steven M. Fischer, Bridge Administrator, Thirteenth Coast 
Guard District Bridge Program Office, telephone 206-220-7282; email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code
BNSF Burlington Northern Santa Fe Railway

II. Background, Purpose and Legal Basis

    On March 12, 2018, we published a NPRM entitled ``Drawbridge 
Operation Regulation; Ebey Slough, Marysville, WA,'' in the Federal 
Register (83 FR 12305). We received one comment on this rule. This 
comment was received May 8, 2018, and included several objections. BNSF 
submitted a rebuttal to us on June 1, 2018, addressing each objection. 
We have read both submittals from each party, and will discuss the 
material herein.
    The Coast Guard is issuing this rule under authority in 33 U.S.C. 
499. BNSF requested a change to the operating schedule of the BNSF 
Railroad Bridge 38.3 across Ebey Slough, mile 1.5, in order to save on 
operating costs for the bridge. The regulation will allow BNSF to 
operate without a bridge operator attending the bridge until an opening 
request has been received, and allow BNSF's bridge operator to open the 
swing span within four hours after receiving a request for an opening. 
Marine traffic on Ebey Slough consists of vessels ranging from small 
pleasure craft, small tribal fishing boats and occasionally medium size 
pleasure motor vessels.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 499. 
The BNSF Bridge 38.3 across Ebey Slough, mile 1.5, at Marysville, WA, 
currently operates in accordance with 33 CFR 117.5. This bridge 
provides a vertical clearance approximately 5 feet above mean high 
water and approximately 16 feet above mean low water when in the 
closed-to-navigation position. The Coast Guard will add the vertical 
clearances in the Coast Pilot. Vertical clearance in the open-to-
navigation position is unlimited. During July 2017, a BNSF supervisor 
contacted the District Bridge Office via a phone call enquiring about a 
rule change for the subject bridge due to a low number of openings. In 
2015, the number of bridge openings was 128, and each year afterward, 
the number of openings have progressively been less. The City of 
Maryville closed the only marina upriver from the swing bridge in 2016, 
and that year the bridge opened 48 times, and most of those openings 
were for relocating vessels leaving the marina. At the time BNSF 
submitted a rule change request in August 2017, only two vessel opening 
requests were received. However, after reviewing updated bridge logs 
for this rule change, we identified a total of five openings. This rule 
change to request at least a four hour notice to open the subject 
bridge will lower operating cost, and the waterway use supports this 
rule.

IV. Discussion of Comments, Changes and the Final Rule

    Part of the comment submitted stated our NPRM was devoid of BNSF's 
written request. Our NPRMs do not include the bridge owner's written 
request, and anyone may request a rule change. The Coast Guard 
published the NPRM based on facts open to public comment, allowing 
ample opportunity for review. The comment continues with six 
objections, the following addresses these objections with BNSF's 
rebuttal and our determination:
    A. The commenter objects to removal of the bridge tender on the 
basis that the bridge tender performs routine day-to-day maintenance 
and inspection, assuring that the bridge operates as intended. Without 
the bridge tender, there are increased chances for mechanical failure 
leading to a halt in maritime traffic. USCG disagrees. The bridge 
operator's responsibility and/or role to perform day-to-day routine 
maintenance, inspection, repairs and in ensuring the swing span will 
open is irrespective of the mariner notice time to open the bridge. In 
the event of a mechanical failure, multiple BNSF employees are 
available to respond, including BNSF maintenance crews, bridge and 
track inspectors, and supervisors. This response to execute repairs is 
not changed by this rule. The subject bridge is cycled open and closed 
on a periodic bases to ensure the operating status as required by 33 
CFR 117.5. This rule will not impact the operation of the bridge or 
change BNSF's responsibility to maintain the bridge.
    B. The commenter discusses the issue of trespassers who use the 
bridge for fishing, and freight trains depositing debris and trash on 
the bridge, both of which are removed and handled by the bridge tender. 
The commenter asserts that without the bridge tender's actions, there 
are significant safety concerns. USCG disagrees. Potential trespassing 
and debris scattered on the subject bridge are hypothetical situations 
that may or may not occur. Nevertheless, other unmanned bridges within 
the district clear debris and have trespassing issues with no impact to 
reasonable navigation. Furthermore, Federal no trespassing signage is 
installed at each bridge.
    C. The commenter raised the issue of the high number of pleasure 
crafts utilizing the waterway, and how those watercrafts may try and 
utilize the waterway without requesting an opening. The Coast Guard has 
determined that the use of Ebey Slough has progressively lessened over 
a few years, as stated in section III. We contacted local authorities 
asking what type of vessels have been seen using this waterway, and 
they answered kayaks and small outboard motor boats. These vessels have 
not or typically have not requested bridge openings. At high tide, 5 
feet is enough vertical clearance for these types of vessels to transit 
under the swing span. In 2016 and 2017, only two vessels routinely 
requested an opening, and those opening request were given more than 
four hours prior to needing the swing span to open. Other pleasure 
vessels did request

[[Page 65300]]

openings in 2016, but after the marina was closed, those vessels no 
longer transit through Ebey Slough. The marina was the only small 
business on this part of Ebey Slough. We also stated in the NPRM that 
an alternate route is available via Steamboat Slough or Union Slough. 
Whether or not a vessel requests an opening on demand or four hours 
prior to arriving at the subject bridge, mariners are responsible for 
knowing and following the notification for bridge operating rules. All 
mariners are responsible for and encouraged to report bridge opening 
delays or non-opening issues.
    D. The commenter states that the NPRM did not disclose how a 
mariner may contact BNSF for the subject bridge operations or 
emergencies. That omitted information was an error on our part. BNSF 
agrees to install signs at the subject bridge that will state, ``Call 
BNSF Bridge 37.0 at Snohomish River mile 3.5 at 425-304-6613, or use 
VHF CH 13 for bridge opening requests. In case of an emergency, call 
800-832-5452''.
    E. The commenter states that with just a four hour notice, without 
a tender on site for operation, a qualified tender may have to travel 
far to Ebey Slough. Furthermore, the commenter states that BNSF may 
lose availability of qualified bridge tenders due to this change in the 
regulation. The Coast Guard disagrees, as BNSF made the request of at 
least four hours of notification to open the swing span of the subject 
bridge. By the Coast Guard approving this rule, the burden falls on 
BNSF to follow the rule or will be in violation and subject to civil 
penalties. BNSF has stated they have qualified bridge operators within 
four hours of Ebey Slough residing near Marysville/Everett, WA. 
Moreover, BNSF has a demonstrated history of meeting this same time 
requirement at a nearby bridge across Steamboat Slough.
    F. This rule will amend 33 CFR 117.1059 to provide specific 
requirements for the operation of BNSF Railroad Bridge 38.3. These 
specific requirements are in addition to or vary from the general 
requirements that apply to all drawbridges across the navigable waters 
of the United States. This rule reasonably accommodates waterway users 
while reducing BNSF's burden in operating the subject bridge, and 
supports the current usage of Ebey Slough. We have not identified any 
impacts on marine navigation with this rule. An alternate route is 
available into Steamboat Slough and/or via Union Slough at high tide.

V. Regulatory Analyses

    We developed this final rule considering numerous statutes and 
Executive order(s) related to rulemaking. Below we summarize our 
analyses based on these statutes and Executive order (s), 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 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 ability for the bridge to open on signal 
after receiving at least four hours advanced notice, and not delay 
passage of any mariner. Vessels not requiring an opening may pass under 
the bridge at any time. Alternate routes are available, as stated 
herein.

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 no 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.
    While some owners or operators of vessels intending to transit the 
bridge may be small entities, for the reasons stated in section IV.C 
above, this rule will not have a significant economic impact on any 
vessel owner or operator. The only small entity that could have been 
impacted on this part of Ebey Slough, and used the BNSF Bridge 38.3, 
closed in 2016. No other entities are near the subject bridge, or use 
this part of the waterway. Ebey Waterfront Park has a public boat ramp 
less than 200 yards upriver from the subject bridge. Mariners and 
marine businesses were informed of the NPRM via publishing a 
notification in the Local Notice to Mariners from March 21, 2018 to May 
22, 2018, and no comments were submitted by any small entities. The 
only comment received was from a union group representing the bridge 
operators, and that comment with objections were addressed in Section 
IV.
    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 will 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

[[Page 65301]]

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. No comment were received from 
the published NPRM in regards to this section.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 (adjusted for 
inflation) or more in any one year. Though this rule will not result in 
such an expenditure, we do discuss the effects of this rule elsewhere 
in this preamble. No comment were received from the published NPRM in 
regards to this section.

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; and Department of 
Homeland Security Delegation No. 0170.1.


0
2. In Sec.  117.1059 add paragraph (g) to read as follows:


Sec.  117.1059  Snohomish River, Steamboat Slough, and Ebey Slough.

* * * * *
    (g) The draw of the Burlington Northern Santa Fe Railroad Bridge 
across Ebey Slough, mile 1.5, near Marysville, WA, shall open on signal 
if at least four hours notice is given. The opening signal is one 
prolonged blast followed by one short blast. During freshets, a draw 
tender shall be in constant attendance, and the draw shall open on 
signal when so ordered by the District Commander.

David G. Throop,
Rear Admiral, U.S. Coast Guard, Commander, Thirteenth Coast Guard 
District.
[FR Doc. 2018-27525 Filed 12-19-18; 8:45 am]
BILLING CODE 9110-04-P