[Federal Register Volume 88, Number 86 (Thursday, May 4, 2023)]
[Proposed Rules]
[Pages 28442-28444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-09515]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2023-0187]
RIN 1625-AA09


Drawbridge Operation Regulation; Black River, Lorain, OH

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to modify the operating schedule that 
governs the Charles Berry Bridge, mile 0.6, and the Norfolk Southern 
Railroad Bridge, mile 1.2, both over the Black River. The regulation 
has not been updated since 1986. The Coast Guard's proposed revisions 
will ensure the needs of all modes of transportation are being met.

DATES: Comments and relate material must reach the Coast Guard on or 
before July 3, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0187 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
PAWSA Ports and Waterway Safety Assessment
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    The Black River is a tributary of Lake Erie, created at the 
confluence of the east and west branches of the Black River at Elyria, 
Ohio. It then travels 12 miles to empty into Lake Erie at Lorain, Ohio. 
Large commercial vessels and powered and non-powered recreational 
vessels use the river. Most of the recreational vessels using the 
waterway moor in the outer harbor basin or launch from one of the two 
municipal boat ramp locations. The head of navigation is located at 
approximate river mile 3, just past the former U.S. Steel Dock on the 
south side of Lorain. The river continues to Elyria, Ohio with water 
depths reported less than 6-feet based on LWD. There are no detours 
available for vessels to avoid passing through the bridges.
    Three bridges cross the river at Lorain, two drawbridges and one 
fixed. The Charles Berry Bridge, mile 0.6, is a double leaf bascule 
bridge that provides a horizontal clearance of 148-feet and a vertical 
clearance of 33-feet at center above LWD in the closed position and an 
unlimited clearance in the open position. The Norfolk Southern Railroad 
Bridge, mile 1.2, is a vertical lift bridge that provides a horizontal 
clearance of 205-feet and a vertical clearance of 35-feet in the closed 
position above LWD and 123-feet in the open position above LWD. The 
Lofton Henderson Memorial Bridge, mile 2, is a fixed bridge that 
provides a horizontal clearance of 256-feet and a vertical clearance of 
97-feet based on LWD.
    The Charles Berry Bridge, mile 0.6, is governed by 33 CFR 117.850, 
allowing the bridge to only open twice an hour and operate in evenings 
with a 2-hour advance notice. The Norfolk Southern Railroad Bridge, 
mile 1.2, does not have operating regulations.

III. Discussion of Proposed Rule

    On August 7, 1986, we published in the Federal Register (51 FR 
28380), on request of the Lorain County Engineer, to limit bridge 
movements and prevent traffic congestion at the bridge. In the 
intervening 37 years, several riverfront businesses that received 
maritime traffic have closed and/or been removed, to include two steel 
mills at the head of navigation, an iron ore terminal, a coal fired 
power plant, and Ford Lorain Assembly Plant. These changes have 
impacted traffic at the Charles Berry Bridge, mile 0.6, reducing the 
number of vessels visiting the harbor and reducing the number of 
workers traveling to and from work over the bridges.
    According to the Ohio Department of Transportation Data Management 
System, since 1986, vehicle crossings at the Charles Berry Bridge, mile 
0.6, have decreased year over year. In 2022, the annual daily average 
vehicle crossing was 2,161 vehicles, a decline of almost 45% in vehicle 
crossings since 1986.
    The Charles Berry Bridge, mile 0.6, provides 33-feet of vertical 
clearance above LWD and the current regulation requires the bridge to 
open on signal for commercial vessels. Accordingly, the only vessels 
the regulation restricts is the sailing population. Arguably, the Coast 
Guard should have amended the regulations after the lakeside marina 
opened in 1989, moving most of the recreational vessels, including 
sailing vessels, from the docks in the Lorain River to the harbor north 
of the bridges.
    The primary purpose of the current bridge regulation was to prevent 
vehicle congestion at the bridge. However, with the reduction of 
vehicles and vessels transiting the river on a regular basis, the 
calculus has shifted, and the Coast Guard proposes to revise the 
regulation to remove the burden from the recreational vessels using the 
waterway.
    We are proposing to remove the restricted bridge opening times of 
on the hour and half hour. We also propose to remove the restrictions 
of 8 a.m., 3 p.m., 4 p.m., and 5 p.m. because the traffic counts do not 
support a significant gathering of vehicles at the bridge during those 
times.

[[Page 28443]]

    We informally asked local stakeholders for comments, and we 
received one comment requesting to keep the current winter operations 
as written.
    In 2022, the Coast Guard received three reports of the drawtender 
delaying the opening of the bridge: two reports against the highway 
bridge and one against the railroad bridge; all three delays have been 
attributed to communications problems. The Coast Guard hopes that it 
can resolve the communications issue by proposing that both movable 
bridges operate a Radio Telephone and telephone. Both bridges would be 
required to post these requirements with winter hours at the bridge 
under Sec.  117.55.

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.

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 is not significant since it removes the 
burdens placed on the boaters.

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, 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.

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-2023-0187 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

[[Page 28444]]

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; and DHS Delegation No. 
00170.1, Revision No. 01.3.

0
2. Revise Sec.  117.850 Black River to read as follows:
    (a) The Charles Berry Bridge, mile 0.6, will open on signal, except 
from January 1 through March 31 when the bridge will open if a 12-hour 
advance notice is given. The bridge will operate and maintain a VHF-FM 
Marine Radio and a telephone number.
    (b) The Norfolk Southern Railroad Bridge, mile 1.2, will open on 
signal, except from January 1 through March 31 when the bridge will 
open if a 12-hour advance notice is given. 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. 2023-09515 Filed 5-3-23; 8:45 am]
BILLING CODE 9110-04-P