[Federal Register Volume 88, Number 91 (Thursday, May 11, 2023)]
[Rules and Regulations]
[Pages 30231-30233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10096]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2022-0371]
RIN 1625-AA09


Drawbridge Operation Regulation; Atlantic Intracoastal Waterway 
(AICW) and Miami Beach Channel, Miami, FL

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is modifying the operating schedule that 
governs the West 79th Street Bridge across the Atlantic Intracoastal 
Waterway (AICW), mile 1084.6, at Miami, Florida, and the East 79th 
Street Bridge across Miami Beach Channel, mile 2.20, at Miami Beach, 
Florida. This action will place the West and East 79th Street Bridges 
on a once an hour opening schedule during peak traffic hours, Monday 
through Friday, except Federal holidays. This action is intended to 
assist with reducing vehicular traffic congestion in the area.

DATES: This rule is effective June 12, 2023.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov. Type the 
docket number (USCG-2022-0371) in the ``SEARCH'' box and click 
``SEARCH''. In the Document Type column, select ``Supporting & Related 
Material.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or email Ms. Jennifer Zercher, Bridge

[[Page 30232]]

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
OMB Office of Management and Budget
NPRM Notice of Proposed Rulemaking (Advance, Supplemental)
Sec.  Section
U.S.C. United States Code
FDOT Florida Department of Transportation
FL Florida
AICW Atlantic Intracoastal Waterway

II. Background Information and Regulatory History

    On June 7, 2022, the Coast Guard published a Notice of Proposed 
Rulemaking entitled, ``Drawbridge Operation Regulation; Atlantic 
Intracoastal Waterway (AICW) and Miami Beach Channel, Miami, FL'' in 
the Federal Register (87 FR 34601). There we stated why we issued the 
NPRM and invited comments on our proposed regulatory action related to 
this regulatory change. During the comment period that ended July 22, 
2022, we received one hundred twenty-six comments, and those comments 
are addressed in Section IV of this Final Rule.
    On September 20, 2022, the Coast Guard published a Test Deviation 
entitled ``Drawbridge Operation Regulation; Atlantic Intracoastal 
Waterway (AICW) and Miami Beach Channel, Miami, FL'' in the Federal 
Register (87 FR 59298). There we stated why we issued the Test 
Deviation and invited comments on our proposed regulatory action 
related to this regulatory change. During the comment period that ended 
December 29, 2022, we received two hundred two comments, and those 
comments are addressed in Section IV of this Final Rule.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 499.
    The West 79th Street Bridge across the AICW, mile 1084.6, at Miami, 
FL is a double-leaf bascule bridge with a 21-foot vertical clearance 
(25 feet charted at the center span) at mean high water in the closed 
position. The normal operating schedule for the bridge is set forth in 
33 CFR 117.261 (mm-1). The East 79th Street Bridge across the Miami 
Beach Channel, mile 2.20, at Miami Beach, FL is a double-leaf bascule 
bridge with a 21-foot vertical clearance at mean high water in the 
closed position. The normal operating schedule for the bridge is set 
forth in 33 CFR 117.304. Navigation on the waterways consists of 
recreational and commercial mariners.
    North Bay Village, with the support of the bridge owner, Florida 
Department of Transportation, requested the Coast Guard consider 
allowing the drawbridges to remain closed to navigation during morning 
and evening rush hour with top of the hour openings provided at pre-
determined times. North Bay Village requested this change to assist 
with alleviating vehicle traffic congestion in the area.

IV. Discussion of Comments, Changes and the Final Rule

    During the NPRM comment period, 126 were received. One hundred 
fifteen comments were in support of the proposed change. Comments in 
general supported the change with multiple comments asking for further 
restrictions. Comments to further restrict navigation included not 
opening during daylight hours and opening once an hour. The Coast Guard 
feels additional operating restrictions on these waterways would create 
an unreasonable obstruction across navigable waters of the United 
States which is contrary to federal law. Eight comments had no opinion 
on the proposed change but provided general comments on the operation 
of the bridges. Comments were made that the bridges are not being 
properly maintained and have frequent failures. These comments were 
outside the scope of the NPRM, and the comments were made available to 
the bridge owner. Three comments opposed the proposed change. The 
comments stated the bridge should not open hourly because it is during 
rush hour. These commenters misunderstood the bridge operation, 
however, because this action will reduce the drawbridge openings by 
only allowing the bridge to open hourly verses the current schedule of 
twice an hour.
    During the Test Deviation comment period, 202 comments were 
received. One hundred seventy-eight comments were in support of the 
test deviation and proposed changes. Like the NPRM comments, most 
appeared to be part of a mass mailing campaign by residents and North 
Bay Village employees and included identical or very similar comments. 
One North Bay Village employee stated the bridges should be permanently 
closed to navigation and nine others wanted additional restrictions 
which included not opening during rush hour. Comments to permanently 
close or allow the drawbridge not to open during rush hour would create 
an unreasonable obstruction across navigable waters of the United 
States and is contrary to federal law. Seven comments had no opinion on 
the proposed change but mentioned the bridge failures, and that a new 
bridge should be considered. These comments were outside the scope of 
the test deviation and the comments were made available to the bridge 
owner. Eight comments were duplicate entries.
    We did not make changes to the regulatory text as a result of these 
comments. We did, however, make a change to the numbering scheme within 
117.261.

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.

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 fact that 
vessels can still transit the bridges at designated times throughout 
the day, and vessels that can transit under the bridges without an 
opening may do so 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 received zero 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

[[Page 30233]]

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.

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.

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. 00170.1. Revision No. 01.3


0
2. Amend Sec.  117.261 by redesignating paragraph (nn) as paragraph 
(oo) and adding new paragraph (nn) to read as follows:


Sec.  117.261  Atlantic Intracoastal Waterway from St. Marys River to 
Key Largo.

* * * * *
    (nn) West 79th Street Bridge, mile 1084.6, at Miami, Florida. The 
draw shall operate as follows:
    (1) Monday through Friday (except on Federal holidays):
    (i) 7 a.m. to 10 a.m. the draw need only open on the hour.
    (ii) 10 a.m. to 4 p.m. the draw need only open on the hour and half 
hour.
    (iii) 4 p.m. to 7 p.m. the draw need only open on the hour.
    (iv) 7 p.m. to 7 a.m. the draw shall open on signal.
    (2) Saturday, Sunday, and Federal holidays the draw shall open on 
signal.
* * * * *

0
3. Revise Sec.  117.304 to read as follows


Sec.  117.304  Miami Beach Channel.

    The draw of the East 79th Street Bridge, mile 2.20, at Miami Beach, 
Florida. The draw shall operate as follows:
    (a) Monday through Friday (except on Federal holidays):
    (1) 7 a.m. to 10 a.m. the draw need only open on the hour.
    (2) 10 a.m. to 4 p.m. the draw need only open on the hour and half 
hour.
    (3) 4 p.m. to 7 p.m. the draw need only open on the hour.
    (4) 7 p.m. to 7 a.m. the draw shall open on signal.
    (b) Saturday, Sunday, and Federal holidays the draw shall open on 
signal.

    Dated: May 4, 2023.
Brendan C. McPherson,
Rear Admiral, U.S. Coast Guard, Commander Coast Guard Seventh District.
[FR Doc. 2023-10096 Filed 5-10-23; 8:45 am]
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