[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
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 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.
 
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  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. http://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