[Federal Register Volume 87, Number 109 (Tuesday, June 7, 2022)]
[Proposed Rules]
[Pages 34598-34600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12121]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2021-0301]
RIN 1625-AA09


Drawbridge Operation Regulation; Three Mile Creek, Mobile, 
Alabama

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 CSX Transportation drawbridge across Three Mile Creek, mile 
0.0, Mobile, Mobile County, Alabama. This proposed modification will 
require the bridge to remain open to navigation for three 75 minute 
periods each day. We invite your comments on this proposed rulemaking.

DATES: Comments and relate material must reach the Coast Guard on or 
before August 8, 2022.

ADDRESSES:  You may submit comments identified by docket number USCG 
2021-0301 using Federal Decision Making 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 proposed 
rule, call or email Doug Blakemore, Eighth Coast Guard District Bridge 
Branch at (504) 671-2128 or [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 34599]]

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

II. Background, Purpose and Legal Basis

    CSX Transportation has requested to change the operating schedule 
of their drawbridge across Three Mile Creek, mile 0.0, Mobile, Mobile 
County, Alabama. This bridge is regulated under 33 CFR 117.5 and opens 
on signal. It has a vertical clearance of 10' in the closed to vessel 
position and is unlimited in the open to vessel position. Navigation on 
this creek consists of tows and barges and small industrial vessels.
    On June 1, 2021 at the request of CSX, the Coast Guard issued a 
temporary deviation to the regulations titled ``Drawbridge Operation 
Regulation; Three Mile Creek, AL'' (86 FR 29204). There, we stated that 
the 60-day deviation would test a temporary change to the operating 
schedule of the CSX drawbridge bridge to determine whether a permanent 
change is necessary. From June 1 through August 2, 2021 this deviation 
opened the bridge from 6:30 a.m.-7:30 a.m., 2:30 p.m.-3:30 p.m. and 
10:30 p.m.-11:30 p.m. to allow vessels to schedule their trips through 
Three Mile Creek and opened at all other times on signal. During the 
comment period that closed on August 3, 2021, eight comments were 
received.
    Two commenters stated that the proposal would put maritime 
companies at an unfair economic disadvantage in moving commerce 
compared to rail transportation. Neither commenter provided data or 
economic information. The decision to change or create a drawbridge 
regulation rests primarily upon the effect of the proposed change on 
navigation and a vessels reasonable ability to use the waterway and to 
assure that the change provides for the reasonable needs of navigation 
after full consideration of the effect of the proposed action on the 
human environment.
    Two commenters stated that the temporary operating schedule would 
create unsafe navigation conditions. Large vessel queues would be built 
up waiting for the bridge to open. When the bridge opens these vessels 
would attempt to pass through the bridge at the same time. During the 
test deviation the bridge opened about 4 times per day. There were no 
indications or reports that unsafe navigation conditions were created 
during the 60 day test period.
    One commenter stated that the language used in this temporary 
regulation change should be changed to remove the term ``if there are 
no trains on the bridge.'' This phrase has been removed from the 
proposed rule.
    One commenter stated that a commerce clause should be placed in 
this bridge's regulation to allow free navigation. They cited a U.S. 
Supreme Court ruling from 1865, ``Gilman v. Philadelphia.'' This ruling 
addressed balancing the needs of waterborne and land commerce around 
bridges. The proposed bridge schedule provides three periods during 
which the bridge will remain open to navigation and requires that the 
bridge open on signal at other times throughout the day.
    Several commenters stated that opening the bridge for one hour 
period does not allow maritime companies and vessel operators' adequate 
time to schedule and complete their transits through Three Mile Creek 
and pass through the bridge. The Coast Guard has changed the proposed 
rule to require CSX to keep the bridge opened to vessels for 75 minute 
periods rather than 60 minutes.
    Two commenters stated that they have been losing business because 
of CSX practices. Another commenter estimated that two companies, over 
a 1 month period, lost up to $15,000 in one month because of bridge 
opening delays. This schedule change should allow vessels with 
sufficient time to schedule their through the bridge. The bridge will 
be required to open at all other times on signal.
    The Coast Guard has concluded that there is sufficient information 
to change the regulation which will provide vessels with reasonable 
time to transit through the bridge and will allow CSX to manage their 
railroad business needs.

III. Discussion of Proposed Rule

    This proposed rule change would require CSX to open the bridge 
three times each day for 75 continuous minutes to allow vessels to 
transit through the bridge to and from the Mobile River. And it 
requires CSX to open the bridge on signal at all other times when there 
are no trains in the block passing over the bridge.
    In promulgating drawbridge regulations the Coast Guard must balance 
the needs of vessels, land transportation and railroads. The public's 
right to navigation is paramount to rail transportation but it is not 
absolute. This right may be diminished to benefit land and rail 
transportation provided that the reasonable needs of navigation are not 
impaired. CSX has informed the Coast Guard that it cannot physically 
expand its yard to accommodate building long trains. Vessel operators 
and facility operators on Three Mile Creek have informed the Coast 
Guard that their businesses have been and are impacted when CSX 
stations and passes trains over the bridge and does not open the bridge 
on signal. This proposed rule change should provide all entities with 
the ability to use Three Mile Creek and the CSX drawbridge 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. 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).
    This regulatory action determination is based on the ability that 
vessels can still transit the bridge and the bridge will open in case 
of emergency at any time.

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

[[Page 34600]]

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.

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, 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.

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 Decision 
Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2021-0301 in the search box and click 
``Search.'' Next, look for this document in the Search Results column, 
and click on it. Then click on the Comment option. 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.
    To view documents mentioned in this proposed rule as being 
available in the docket, find the docket as described in the previous 
paragraph, and then select ``Supporting & Related Material'' in the 
Document Type column. Public comments will also be placed in our online 
docket and can be viewed by following instructions on the https://www.regulations.gov Frequently Asked Questions web page. We review all 
comments received, but we will only post comments that address the 
topic of the proposed rule. We may choose not to post off-topic, 
inappropriate, or duplicate comments that we receive.
    We accept anonymous comments. Comments we post to https://www.regulations.gov will include any personal information you have 
provided. 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).

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; DHS Delegation No. 
0170.1.

0
2. In Sec.  117.115 redesignate paragraphs (a) and (b) as paragraphs 
(b) and (c) and add new paragraph (a) to read as follows:


Sec.  117.115   Three Mile Creek.

    (a) The draw of the CSX railroad bridge, mile 0.0., will operate as 
follows: each day from 6:30 a.m.-7:45 a.m., 2:30 p.m.-3:45 p.m. and 
10:30 p.m.-11:45 p.m. the bridge will remain in the open to navigation 
position. At all other times the draw will open on signal and remain 
open to clear all vessel queues. CSX will open the draw anytime at the 
direction of the District Commander.
* * * * *

    Dated: May 31, 2022
R.V. Timme,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 2022-12121 Filed 6-6-22; 8:45 am]
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