[Federal Register Volume 86, Number 122 (Tuesday, June 29, 2021)]
[Proposed Rules]
[Pages 34172-34175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13701]


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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: Supplemental notice of proposed rulemaking.

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SUMMARY: On July 13, 2020, the Coast Guard published a notification of 
proposed rulemaking (NPRM) 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 
would allow the drawbridge to operate on a more predictable schedule. 
The Coast Guard is publishing this supplemental notice of proposed 
rulemaking (SNPRM) as considerable time has passed since the NPRM was 
published and minor modifications have been made to the proposed rule. 
We invite your comments on this proposed rulemaking.

DATES: Comments and related material must reach the Coast Guard on or 
before July 29, 2021.

[[Page 34173]]


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 
supplemental proposed rule, call or email Ms. Jennifer Zercher, Bridge 
Management Specialist, Seventh Coast Guard District, telephone 305-415-
6740, 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
SNPRM Supplemental notice of proposed rulemaking
ANPRM Advance Notice of Proposed Rulemaking
Pub. L. Public Law
Sec.  Section
U.S.C. United States Code
FL Florida
FRA Federal Rail Administration
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

    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. Brightline, formerly Virgin Trains--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.
    On January 23, 2020, the Coast Guard published a Test Deviation, 
with a request for comments, entitled Drawbridge Operation Regulation; 
New River, Fort Lauderdale, FL in the Federal Register (85 FR 3852), to 
test the proposed operating schedule for the FEC New River Railroad 
Bridge. Seven comments were received and addressed in the NPRM.
    On July 13, 2020, the Coast Guard published a Notice of Proposed 
Rulemaking entitled Drawbridge Operation Regulation; New River, Fort 
Lauderdale, FL in the Federal Register (85 FR 41932). During the 
comment period that ended August 12, 2020, we received two comments and 
those comments are addressed in Section III of this SNPRM.
    We are issuing this supplemental proposal as considerable time has 
passed since the NPRM was published and comments were considered after 
the comment period had closed that lead to minor changes to the 
proposed rule. An Ex Parte Memorandum summarizing the communication is 
available in the docket.
    The Coast Guard is issuing this proposed rule under authority 33 
U.S.C. 499.

III. Discussion of Comments and Change

    Two comments were received. One comment received was a re-
submission by Brightline, formerly VTUS-F, which was addressed in the 
NPRM.
    The second comment addressed concerns with the abbreviated vessel 
traffic study, interpretation of and language used in the proposed 
regulation. The commenter felt the inclusion of the abbreviated vessel 
traffic study might not have represented an accurate impact on the 
waterway as train service was disrupted by the coronavirus pandemic. 
The Coast Guard evaluated the survey provided. A decision was made to 
consider the data as train service was not reduced until March 18, 
2020, the last day of the study.
    The commenter's interpretation of the requirement to publish the 
10-minute opening periods is correct. The requirement to publish the 
10-minute opening periods applies to fixed 10-minute periods and the 
additional 10-minute periods from Noon to 2:59 p.m.
    In regards to the commenter's interpretation of paragraph (5), 
actions taken by the Coast Guard, the Coast Guard will follow 
notification procedures to the maritime community as outlined by Coast 
Guard policy. Additionally, the Coast Guard will clarify who is to 
maintain the drawbridge log, mobile application and website in 
paragraphs (6) and (7) by adding the phrase ``by the drawbridge owner'' 
to the regulation.
    The commenter requested to add language in paragraph (7)(ii), that 
would require notification of emergency circumstances be included on 
the website and mobile application. The following language was added 
``. . . schedules, including but not limited to impacts due to 
emergency circumstances, minor repairs and inspections . . .''
    The commenter's interpretation of the paragraph (8)(iii) is 
accurate. The drawbridge must open after the passage of rail traffic. 
However, the bridge may remain closed to navigation if periodic 
maintenance or inspections will be conducted in accordance with 
paragraph (1).
    Lastly, the Coast Guard received a request from Marine Industries 
Association of South Florida (MIASF) to review and potentially define 
the term ``minor repairs'' as written in the propose rule after the 
comment period had closed. The Coast Guard evaluated the term ``minor 
repairs'' as it relates to drawbridge operating regulations and Federal 
Rail Administration (FRA) regulations. The Coast Guard does not define 
nor quantify ``minor repairs'' when authorizing federal drawbridge 
operation regulations; whereas FRA outlines what constitutes ``major 
repairs'' in 49 CFR 232.303. The Coast Guard made the decision to 
remove ``minor repairs'' from the proposed rule and include the 
following ``. . . and to perform periodic maintenance authorized in 
accordance with subpart A of this part.''

IV. 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. This SNPRM proposes to remove ``minor repairs'' from the 
proposed regulatory text. This action allows for consistency with 
regulatory language frequently used in other regulations in 33 CFR part 
117 subpart B. There are no other proposed changes to the operating 
schedule. The regulatory text we are proposing appears at the end of 
the document.
    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.

[[Page 34174]]

V. 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. This SNPRM has not been designated a ``significant 
regulatory action,'' under Executive Order 12866. Accordingly, the 
SNPRM has not been reviewed by the Office of Management and Budget. 
(OMB).
    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 V.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 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 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.

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 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, Table 3-1 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.

VI. 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. For more about privacy and 
submissions in response to this document, see DHS's eRulemaking

[[Page 34175]]

System of Records notice (85 FR 14226, March 11, 2020).
    Documents mentioned in this SNPRM 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; and Department of 
Homeland Security Delegation No. 0170.1.

0
2. Amend Sec.  117.313 by revising paragraph (c) to read as follows:


Sec.  117.313  New River.

* * * * *
    (c) The draw of the 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 period when 
it is closed for the passage of rail traffic, inspections and to 
perform periodic maintenance authorized in accordance with subpart A of 
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 drawbridge 
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 drawbridge log shall be maintained by the drawbridge 
owner and upon request, be provided to the Coast Guard.
    (7) A website and mobile application shall be maintained by the 
drawbridge owner and publish:
    (i) Drawbridge opening times required by this subsection;
    (ii) Timely updates to schedules; including but not limited to 
impacts due to emergency circumstances, minor repairs and inspections;
    (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:
    (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 21, 2021.
Eric C. Jones,
Rear Admiral, U.S. Coast Guard, Commander Seventh Coast Guard District.
[FR Doc. 2021-13701 Filed 6-28-21; 8:45 am]
BILLING CODE 9110-04-P