[Federal Register Volume 86, Number 140 (Monday, July 26, 2021)]
[Rules and Regulations]
[Pages 39963-39965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15806]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2020-0056]
RIN 1625-AA09


Drawbridge Operation Regulation; Fox River, Oshkosh, WI

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Final rule.

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SUMMARY: The Coast Guard is amending the operating schedule that 
governs the Canadian National Railroad Bridge, mile 55.72, across the 
Fox River to operate remotely. The request was made by the bridge 
owner. This rule re-establishes remote operations of the bridge and 
will not change the operating schedule of the bridge.

DATES: This rule is effective August 25, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov. Type USCG-
2020-0056 in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

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
FR Federal Register
OMB Office of Management and Budget
NPRM Notice of proposed rulemaking (Advance, Supplemental)
Sec.  Section
TD Temporary deviation with request for comments
U.S.C. United States Code

II. Background Information and Regulatory History

    In 2010 we published a NPRM to solicit comments concerning allowing 
the Canadian National Railroad Bridge, mile 55.72 to operate remotely 
(75 FR 76322, December 8, 2010; USCG-2010-1029). The public requested 
the bridge owner to install and maintain additional warning lights. The 
NPRM was withdrawn because the railroad refused to install and maintain 
the additional warning lights the public requested (76 FR 13312, March 
11, 2011). Recently, the Railroad has agreed that from April 27 through 
October 7 additional warning lights, specifically those alternating 
flashing red lights that mimic a Grade Crossing Signal commonly found 
at highway railroad crossing would be installed and maintained to warn 
mariners that the bridge was about to close. The remote operator shall 
also announce that the bridge is opening or closing on VHF-FM Marine 
Radiotelephone. The owners of the bridge shall maintain 2 board gauges 
in accordance with 33 CFR 118.160. The remote drawtender may be 
contacted by mariners at any time by radiotelephone or commercial phone 
number; this information shall be so posted on the bridge so that they 
are plainly visible to vessel operators approaching the up or 
downstream side of the bridge.
    The current winter operating schedule requiring vessels to provide 
at least 12-hours advance notice for a bridge opening during the winter 
will remain in effect. Additionally, the clearance gauges would still 
be required to indicate to vessels the water levels and clearance while 
the bridge is in the closed position. During the comment period, a 
tender will be at the bridge to allow the public to observe the 
proposed bridge operations. We

[[Page 39964]]

published an after the fact TD in the Federal Register (85 FR 54496) on 
September 2, 2020, for a test schedule that ran from April 26, 2020, 
through September 2, 2020. Posting in the Federal Register was delayed 
due to COVID-19 but we supplemented the request with direct emails, 
Local Notice to Mariners, and internet based meetings platforms. No 
comments were received.
    We published a NPRM in the Federal Register (86 FR 18925) that was 
published on April 12, 2021, and requested comments until June 11, 
2021. We received one comment concerned with general safety at the 
bridge. The commenter predicted remotely operating the bridge would 
result in a higher risk of allision and collisions at the bridge along 
with increased delays for boaters. Most of the commenter's concerns 
were addressed in the TD and NPRM and no reports of mishap or allision 
was received during the TD. The commenter stated long delays at the 
bridge for vessels; however, the Coast Guard has not received any 
reports of delay in approximately five years.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 499. 
This rule will allow the bridge to operate remotely and it will not 
change the operating schedule of the bridge. The bridge will open on 
signal, except when ice forms in the waterway and vessels can request 
an opening if a 12-hour advance notice is provided.

IV. Discussion of Final Rule

    We carefully reviewed the comments and did not find good reason to 
alter the language as published in the NPRM.

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. 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).
    This regulatory action determination is based on the ability that 
vessels can still transit the bridge given advanced notice in the 
winter and by signal all other times.

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 will 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 rule will 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 (Pub. L. 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 
section.
    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 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.
    We did not receive any comments from Indian Tribal Governments.

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, 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 rule promulgates the operating 
regulations or procedures for drawbridges and is 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.

[[Page 39965]]

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. Amend Sec.  117.1087 by revising paragraph (c) to read as follows:


Sec.  117.1087   Fox River.

* * * * *
    (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. The bridge is 
authorized to be operated remotely. The owners of the bridge shall 
provide and keep in good legible condition two board gauges painted 
white with black figures to indicate the vertical clearance under the 
closed draw at all water levels. The gauges shall be so placed on the 
bridge that they are plainly visible to operators of vessels 
approaching the bridge either up or downstream. The bridge shall 
operate and maintain a VHF-FM Marine Radio. In addition to the required 
bridge lights, the owner's shall install and maintain alternating red 
lights in a horizontal line that mimic grade crossing lights and bell 
to warn mariners that the bridge is lowering.
* * * * *

M.J. Johnston,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2021-15806 Filed 7-23-21; 8:45 am]
BILLING CODE 9110-04-P