[Federal Register Volume 89, Number 47 (Friday, March 8, 2024)]
[Rules and Regulations]
[Pages 16690-16693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04952]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2023-0186]
RIN 1625-AA09


Drawbridge Operation Regulation; Portage River, Port Clinton, OH

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

ACTION: Final rule.

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SUMMARY: The Coast Guard is altering operating regulations of the 
Monroe Street Highway Bridge, mile 0.4 and the Norfolk Southern 
Railroad Bridge, mile 1.5, over the Portage River at Port Clinton, 
Ohio.

DATES:  This rule is effective April 8, 2024.

ADDRESSES: You may submit comments identified by docket number USCG-
2023-0186 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 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
DHS Department of Homeland Security
FR Federal Register
IGLD International Great Lakes Datum of 1985
LWD Low Water Datum based on IGLD85 MPH Miles Per Hour
NPRM Notice of Proposed Rulemaking (Advance, Supplemental)
OMB Office of Management and Budget
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On May 5, 2023, the Coast Guard published an NPRM, with a request 
for comments, entitled ``Drawbridge Operation Regulation; Portage 
River, Port Clinton, OH'' in the Federal Register (88 FR 29007), to 
seek your comments on whether the Coast Guard should consider modifying 
the current operating schedule to the Monroe Street Highway Bridge, 
mile 0.4 and the

[[Page 16691]]

Norfolk Southern Railroad Bridge, mile 1.5, over the Portage River at 
Port Clinton, Ohio. 208 comments were received during the NPRM period. 
The relevant comments are addressed in Section IV of this Final Rule.
    The current regulation for the Portage River reads as follows:

Sec.  117.851 Portage River

    (a) Public vessels of the United States, State or local government 
vessels used for public safety, vessels in distress and vessels seeking 
shelter from rough weather shall be passed through the draws listed in 
this section as soon as possible. Except as provided in paragraph 
(c)(1)(ii) with respect to the Monroe Street bridge, commercial vessels 
shall be passed through the draws of this section as soon as possible.
    (b) The owners of the bridges listed in this section shall provide 
and keep in good legible condition two board gages painted white with 
black figures to indicate the vertical clearance under the closed draw 
at all stages of the tide. The gages shall be so placed on the bridge 
that they are plainly visible to operators of vessels approaching the 
bridge either up or downstream.
    (c) The draw of the Monroe Street bridge, mile 0.4 at Port Clinton, 
shall open as follows:
    (1) From May 1 through November 30--
    (i) Between the hours of 12 midnight and 6 a.m., the draw shall 
open on signal.
    (ii) Between the hours of 6 a.m. and 12 midnight, the draw shall 
open on signal. However, the draw need not open on signal during this 
time for recreational craft and commercial vessels licensed to carry 
fifteen or less passengers, or less than ten gross tons, unless in 
distress or seeking shelter from rough weather. For these vessels, the 
draw need open only from three minutes before to three minutes after 
the hour and half-hour.
    (2) From December 1 through April 30, the draw shall open on signal 
if at least 24 hours' notice is given.
    (d) The draw of the Norfolk Southern Bridge, Mile 1.5 at Port 
Clinton, is remotely operated, is required to operate a radio 
telephone, and shall open on signal. However, from December 1 through 
April 30, the draw shall open on signal if at least 24 hours' notice is 
given.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 499. 
The Portage River is crossed by two movable bridges. The Monroe Street 
Highway Bridge, mile 0.4, is a double leaf bascule bridge that provides 
a horizontal clearance of 75-feet, a vertical clearance of 9-feet in 
the closed position, and an unlimited clearance in the open position 
based on Low Water Datum (LWD). The Norfolk Southern Railroad Bridge, 
mile 1.5, is a single leaf bascule bridge with a horizontal clearance 
of 109-feet, a vertical clearance of 9-feet in the closed position, and 
an unlimited clearance in the open position based on LWD. Norfolk 
Southern Railroad's bridge over the Portage River is remotely operated 
by the Toledo Norfolk Southern Railroad Bridge.
    Numerous informal complaints and concerns from local mariners 
concerning the operations of the Norfolk Southern Railroad Bridge, mile 
1.5 triggered a review of the operating regulations governing the 
bridges across Portage River.

IV. Discussion of Comments, Changes, and the Final Rule

    During the rulemaking process we discovered that the Monroe Street 
Highway Bridge, mile 0.4, sees an average of 15,000 vessels passing 
through the bridge annually. In addition, an average of 3,500 vehicles 
transit over the bridge daily. The current regulation allows the bridge 
to open on signal if a 24-hour advance notice of arrival is provided by 
vessels during the period from November 30th through April 30th. A 
review of the past three years of drawtender logs indicates the bridge 
opens more than three times a day in April for vessels. After analyzing 
this data and discussing vessel and vehicle traffic levels with Ohio 
Department of Transportation (ODOT) and to better conform to exiting 
use patterns, the end date for the advance notice of arrival period for 
the Monroe Street Highway Bridge, mile 0.4, and the Norfolk Southern 
Railroad Bridge, mile 1.5, will be pushed back to March 31 and changed 
to a 12-hour advance notice to meet the current needs of navigation and 
to conform to current guidance.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, 116 concerns were raised that vessels should not have the right of 
way or preference to vehicular traffic. The Coast Guard is required by 
law to ensure that bridges across navigable waters of the United States 
do not unreasonably obstruct waterway traffic while providing for the 
reasonable needs of land traffic. The Coast Guard must also ensure 
actions are taken that allow the 15,000 vessels that pass through the 
bridge annually do so in a safe and orderly manner. To ensure vessel 
safety, any schedule causing vessels to wait for a bridge opening must 
also provide for safe waiting areas for the number of vessels passing 
through the bridge. Because of this, changes to a drawbridge regulation 
are bound by law to minimize exceptions or provisions which may 
restrict waterway traffic. As a result of our review of the bridge 
drawtender logs, the Coast Guard discovered, on average, less than four 
openings occurred between 6 p.m. to 6 a.m. each day. Accordingly, the 
Coast Guard intends to maintain hourly and half hour openings from 6 
a.m. to 6 p.m. to ease the movement of vehicles. In advance of a 
special event, the City or State may in request to modify the 
drawbridge operations temporally to accommodate high vehicle or vessel 
flow associated with these events. Great Lakes ports commonly make 
these requests in the spring for modifications to be effective during 
special summer events.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, 27 expressed concerns that emergency vehicles would not be able to 
cross the bridge if it was open. 33 CFR 117.31 requires the drawtender 
to make all reasonable provisions for emergency response whether 
waterborne or vehicular. Informal comments from residents regarding 
emergency operations were responded to directly and personally by email 
or phone depending on how the comment was received. We also 
corresponded with ODOT and the Port Clinton Fire Department for their 
respective input on each informal inquiry.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, 8 comments were focused on a pedestrian crossing. Pedestrian 
crossing was established to allow pedestrians to cross from an adjacent 
parking lot to the boarding area for the Jet-Express Ferry. Commenters 
reported the crossing of pedestrians at the foot of the bridge causes 
vehicular traffic back-ups at the bridge and blocks emergency vehicles. 
The Coast Guard intends to provide these comments to ODOT for their 
evaluation of the crossing and the effect it has on highway 
transportation issues.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, only one commenter thought that the existing clearance gauges 
should remain. The Coast Guard does not believe the bridge needs to 
maintain these gauges at the bridge to alert the mariners to changes to 
the bridge clearance due to fluctuations in water level. Clearance 
gauges are required on bridges where the waterway is subject to the ebb 
and flow of tides, or where

[[Page 16692]]

water levels are altered artificially by humans through dams, locks, or 
other artificial works. The bridge provides a vertical clearance of 
nine feet in the closed position. The short-term natural fluctuations 
in water levels are not significant enough to require these gauges be 
maintained at the bridge. When recreational mariners inquired about the 
clearance gauges during the comment period, we responded by asking for 
the air draft of each commenter's vessel and for an explanation of how 
each commenter utilized the gauges to determine if they needed a bridge 
opening. Each commenter operating a power-driven recreational vessel 
responded that they did not know the height (air draft) of their 
vessel. Although 33 CFR 117.11 states that no vessel owner or operator 
shall signal a drawbridge to open after all lowerable appurtenances 
that are not essential to navigation have been lowered to safely pass 
under the bridge (stepping the mast), every sailing vessel stated the 
height of their vessel required an opening regardless of the water 
level.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, 3 comments stated crime would increase if the bridge changed to an 
on-demand signal from scheduled openings. No additional information or 
documentation was provided to support these assertions.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, 25 comments stated the bridge has always been operated in the 
existing manner and should not be changed. No documentation to support 
this alleged historical factor other justification was provided by any 
commenter.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, 15 commentors cited public convenience as justification not to 
change the schedule. These comments did not provide any supporting 
documentation for their views.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, 2 comments were received concerning the potential for remote 
operation of the bridge. The potential authorization of remote 
operation of the Monroe Street Highway Bridge is not part of this 
rulemaking.
    Of the comments received for the Monroe Street Highway Bridge, mile 
0.4, 3 commentors thought winter hours ended on April 1 because ODOT 
has manned the bridge starting on April 1 instead of May 1 due to the 
increase in requests for bridge openings during that period. As a 
result, we are moving the end date of the regulation from May 1 to 
April 1. We also received comments from Ottawa County and the State of 
Ohio that the regulation should be left as-is. No data to support this 
was provided by either office. The City of Port Clinton Legal office 
also questioned the legality of the federal government's jurisdiction 
over a federal waterway of the United States. The city did not reply to 
numerous phone calls and emails from the Coast Guard in response to 
this comment. Several informal questions were also received by 
telephone from citizens regarding this regulation. We took the 
opportunity to answer any questions they may have had and invited each 
caller to leave a formal comment on the docket's website.
    One comment was left by Norfolk Southern Railroad addressed of 
Norfolk Southern's practice of parking a train on the bridge at mile 
3.5 to act as a wind blocker. The wind blocker action proposed in the 
NPRM was intended to reflect current practices of the railroad by 
creating a permanent deviation to the regulations which would allow 
Norfolk Southern to use a wind blocker without advanced authorization 
permission from the District Commander. Norfolk Southern's comments 
requested that the wind blocker provision not become part of the 
regulation. Because it will not be included in part B of 33 CFR 117, in 
advance of a significant weather event, the railroad will need to 
request a deviation in writing, to place a wind blocker on the bridge 
as required in 33 CFR 117.35. While the Coast Guard does not dispute 
Norfolk Southern's comment that high winds can present safety issues 
regarding railroad operations, expedient notification to the Coast 
Guard in accordance with 33 CFR 117.35 of the potential employment of a 
wind blocker ensures safe operations while avoiding unreasonable delays 
to marine traffic.
    Lastly, Norfolk Southern claims the Coast Guard's regulation of 
bridges under the Rivers and Harbors Appropriations Act, of 1899 and 
subsequent laws presents a safety hazard to rail traffic. Congress' 
mandate to ensure the safety and efficiency of interstate commerce on 
the waterways is clear and is not mutually exclusive to the safe 
operation and efficiency of rail traffic.

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 proposed rule has not been designated a 
``significant regulatory action,'' under section 3(f) of Executive 
Order 12866, as amended by Executive Order 14094 (Modernizing 
Regulatory Review). 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 or that the 
bridge will open on a schedule.

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 did not receive any 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

[[Page 16693]]

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, 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.

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 DHS Delegation No. 
00170.1, Revision No. 01.3.


0
2. Revise Sec.  117.851 to read as follows:


Sec.  117.851   Portage River.

    (a) The draw of the Monroe Street bridge, mile 0.4 at Port Clinton, 
shall open as follows:
    (1) From April 1 through November 30--
    (i) Between the hours of 6 p.m. and 6 a.m., the draw shall open on 
signal.
    (ii) Between the hours of 6 a.m. and 6 p.m., the draw shall open on 
signal. However, the draw need not open on signal during this time for 
recreational craft and commercial vessels licensed to carry six or less 
passengers. For these vessels, the draw need open only from five 
minutes before to five minutes after the hour and half-hour.
    (2) From December 1 through March 31, the draw shall open on signal 
if at least 12 hours' notice is given.
    (b) The draw of the Norfolk Southern Bridge, Mile 1.5 at Port 
Clinton, is remotely operated, is required to operate a radio 
telephone, and operate and answer a telephone, and shall open on 
signal. Except, from December 1 through March 31, the draw shall open 
on signal if at least 12-hours' notice is given.

    Dated: March 4, 2024.
Jonathan Hickey,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2024-04952 Filed 3-7-24; 8:45 am]
BILLING CODE 9110-04-P