[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]
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