[Federal Register Volume 88, Number 81 (Thursday, April 27, 2023)]
[Proposed Rules]
[Pages 25572-25574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08863]



[[Page 25572]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2023-0184]
RIN 1625-AA09


Drawbridge Operation Regulation; Maumee River, Toledo, OH

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard proposes to modify the operating schedule that 
governs the CSX Railroad Bridge, mile 1.07, the Wheeling and Lake Erie 
Railroad Bridge, mile 1.80, the Craig Memorial Bridge, mile 3.30, the 
Martin Luther King Jr. Memorial Bridge, mile 4.30, and the Norfolk 
Southern Railroad Bridge, mile 5.76, all over the Maumee River at 
Toledo, Ohio. The original regulation was published in 1986 and has 
been amended over the years but a full review of the regulations for 
the waterway has not been completed. The current regulations are 
cumbersome, difficult to understand, and cause confusion to 
recreational vessels and some drawtenders. We invite your comments on 
this proposed rulemaking.

DATES: Comments and related material must reach the Coast Guard on or 
before June 26, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0184 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 If you have questions on this temporary final 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
CRSTF Cuyahoga River Safety Task Force
DHS Department of Homeland Security
FR Federal Register
IGLD International Great Lakes Datum of 1985
LWD Low Water Datum based on IGLD85
OMB Office of Management and Budget
ODOT Ohio Department of Transportation
PAWSA Ports and Waterway Safety Assessment
TMMS Traffic Monitoring Management System
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose and Legal Basis

    The Maumee River is formed at the confluence of the St. Joseph and 
St. Mary's Rivers in the northeast corner of Fort Wayne, Indiana and 
flows 137 miles to Lake Erie. The Maumee River was designated an Ohio 
State Scenic River on July 18, 1974. The entire river was considered a 
navigable waterway until the maintenance of the locks were discontinued 
in 1913 and the head of navigation just past the US 20/Perrysburg-
Maumee Bridge at mile 14.72 was established. The rest of the Maumee 
River continues to be in an advance approval waterway jurisdiction. The 
Maumee River watershed is the largest of any river feeding the Great 
Lakes and supplies five percent of Lake Erie's water.
    The mouth of the river at Toledo and Lake Erie is wide and supports 
considerable international and domestic commercial traffic, including 
oil, grain, and coal cargoes. Powered and unpowered recreational 
vessels utilize the entire river; however, the rapids at mile 15 are 
unpassable without an operable lock system.
    The Maumee River from the head of navigation to the mouth of the 
river is crossed by ten bridges, four of which are movable. The 
vertical clearance of all bridges on the Maumee River are based on LWD.
    The CSX Railroad Bridge, mile 1.07, is a swing bridge with a 
horizontal clearance of 143-feet in both left and right draws and a 
vertical clearance of 22-feet in the closed position and an unlimited 
clearance in the open position.
    The Wheeling and Lake Erie Railroad Bridge, mile 1.80, is a swing 
bridge with a horizontal clearance of 134-feet in both left and right 
draws and a vertical clearance of 20-feet in the closed position and an 
unlimited clearance in the open position.
    The Craig Memorial Bridge, mile 3.30, is a double leaf bascule 
bridge, that provides a horizontal clearance of 200-feet with a minimum 
vertical clearance of 34-feet with a vertical clearance of 44-feet 
available in the center 31-feet while in the closed position and an 
unlimited clearance in the open position.
    The Martin Luther King Jr. Memorial Bridge (prior to 1989, the 
Cherry Street Bridge), mile 4.30, is a double leaf bascule bridge, that 
provides a horizontal clearance of 200-feet with a minimum vertical 
clearance of 34-feet with a vertical clearance of 44-feet available in 
the center 31-feet while in the closed position and an unlimited 
clearance in the open position. The Martin Luther King Jr. Memorial 
Bridge is a Scherzer rolling lift bridge built in 1914 and is eligible 
for listing on the national register of historic places. It was 
rehabilitated in 2002 with an adverse effect. All of the movable 
bridge's superstructure and operating systems were replaced with a 
modern bascule span. It no longer conveys the technological 
significance of the Scherzer design due to loss of integrity of design 
and materials. The arches and piers are the only original fabrication 
remaining from 1914.
    The Norfolk Southern Railroad Bridge, mile 5.76, is a swing bridge 
with a horizontal clearance of 115-feet in both left and right draws 
and a vertical clearance of 17-feet in the closed position and an 
unlimited clearance in the open position.
    The CSX Railroad Bridge, mile 11.38, was a swing bridge with a 
horizontal clearance of 110-feet in both left and right draws and a 
vertical clearance of 53-feet in the closed position and an unlimited 
clearance in the open position. The bridge was allowed to remain closed 
by regulation when the upriver ship building facility closed. The 
bridge was removed in its entirety and at the District Commander's 
satisfaction in 2019.
    On November 3, 1986, we published (51 FR 39858) in the Federal 
Register new regulations for the Maumee River's movable bridges under 
33 CFR 117.855 (Maumee River) that included several schedules for the 
bridges, the new schedules were intended to ease the travel of 
motorists across the bridges while still allowing recreational and 
commercial commerce to travel the river.
    Since 1986, operators of the recreational vessels using the large 
Pier 75 marina near mile 7 have claimed that the Norfolk Southern 
Railroad Bridge, mile 5.76, has repeatedly refused to open for 
recreational vessels. Influenced by Norfolk Southern's failure to open 
for recreational vessels, marina owners and clients moved to a new 
marina near mile 1.07, eliminating most of the recreational vessel 
traffic in that part of the river. The Brennen Marina near mile 4.2 was 
relocated to the former Harrison Marina at mile 1. A smaller marina has 
been built near mile 3.30, but all the vessels in this marina can make 
it through all the bridges, except for the Norfolk Southern Railroad 
Bridge at mile 5.76, without an opening.

[[Page 25573]]

    The current regulations governing the five Toledo-area moveable 
bridges are inconsistent and difficult to understand.

III. Discussion of Proposed Rule

    We propose to require a 12-hour advance notice from December 15 
through March 31. Each bridge owner will be responsible to provide to 
the District Commander an appropriate phone number to be advertised to 
the mariners in the Local Notice to Mariners and would be required to 
be included in the requirements of 33 CFR 117.55.
    After careful review of the annual average vehicle counts at each 
highway bridge, we propose the hourly restrictions imposed on the 
recreational vessels be dismissed due to the reduction in vehicle 
crossing numbers as reported by the TMMS website hosted by ODOT and the 
reduction in recreational vessels with an air draft that would require 
bridge openings.
    In the past three years we have received 66 complaints of delays at 
three of the drawbridges over the Maumee River. These complaints 
include: three written complaints against the Craig memorial Bridge, 
mile 3.30; thirty-one written complaints against the CSX Railroad 
Bridge, mile 1.07; and thirty-two written complaints against the 
Norfolk Southern Railroad Bridge, mile 5.76. Most of the complaints 
against the two railroad bridges have been about a lack of 
communications between the vessels and the drawtender. Often the 
miscommunications have been between the drawtender and the railroad 
dispatchers. To improve communications, we propose to require all 
drawbridges over the Maumee River to maintain and operate a VHF-FM 
Marine Radio and in addition to the Marine Radio the Railroad Bridges 
at mile 1.07 and mile 5.76 will maintain and operate a telephone with a 
correct number to be placed on signage at 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.

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 given advanced notice and that 
most restrictions against vessels have been removed.

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.

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.

[[Page 25574]]

    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.
    Submitting comments. 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-2023-0184 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.
    Viewing material in docket. 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. 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 of any posting or updates to the docket.
    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; Department of Homeland 
Security Delegation No. 00170.1, Revision No. 01.3.

0
2. Revise Sec.  117.855 Maumee River to read as follows:
    (a) The draw of the CSX Railroad Bridge, mile 1.07, will open on 
signal, except that from December 15 through March 31 the bridge will 
require at least 12-hours advance notice. The bridge will operate and 
maintain a VHF-FM Marine Radio and a telephone number.
    (b) The draw of the Wheeling and Lake Erie Railroad Bridge, mile 
1.80, will open on signal, except that from December 15 through March 
31 the bridge will require at least 12-hours advance notice. The bridge 
will operate and maintain a VHF-FM Marine Radio.
    (c) The draw of the Craig Memorial Bridge, mile 3.30, will open on 
signal, except that from December 15 through March 31 the bridge will 
require at least 12-hours advance notice. The bridge will operate and 
maintain a VHF-FM Marine Radio.
    (d) The draw of the Martin Luther King Jr Memorial Bridge, mile 
4.30, will open on signal, except that from December 15 through March 
31 the bridge will require at least 12-hours advance notice. The bridge 
will operate and maintain a VHF-FM Marine Radio.
    (e) The draw of the Norfolk Southern Railroad Bridge, mile 5.76, 
will open on signal, except that from December 15 through March 31 the 
bridge will require at least 12-hours advance notice. The bridge will 
operate and maintain a VHF-FM Marine Radio and a telephone number.

M.J. Johnston,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2023-08863 Filed 4-26-23; 8:45 am]
BILLING CODE 9110-04-P