[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]
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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.
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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.
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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