[Federal Register Volume 89, Number 68 (Monday, April 8, 2024)]
[Rules and Regulations]
[Pages 24381-24383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07368]
=======================================================================
-----------------------------------------------------------------------
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, Department of Homeland Security (DHS).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is altering 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 remained primarily unchanged since 1986 and needs to be updated to
ensure the needs of all modes of transportation are being met.
DATES: This rule is effective May 8, 2024.
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-2023-0187) 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 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
ODOT Ohio Department of Transportation
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 Information and Regulatory History
On May 4, 2023, the Coast Guard published a notice of proposed
rulemaking entitled ``Drawbridge Operation Regulation; Black River,
Lorain, OH,'' in the Federal Register (88 FR 28442). 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 on July 3, 2023, we received 4 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.
Three bridges cross the river at Lorain. 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 drawtender logs provided quarterly summaries of bridge lifts
and provided a rough picture of the type of vessels passing through the
bridge. Currently, the bridge opens frequently for commercial vessels
and very infrequently for recreational vessels. The logs also indicated
seasonal surges of recreational vessels transiting from the marina in
the outer harbor to the boat yard upriver of the bridge. These surges
occurred during the winter haul out, which occurs each fall, and again
each spring as vessels return from the boat yard to the outer marina.
IV. Discussion of Comments, Changes, and the Final Rule
The City of Lorain commented they were concerned with bridge
openings between 3 p.m. and 5 p.m. and did not provide any data to
support that request. We did ask for traffic data from ODOT to clarify
the city's concerns, and we only received very general data that showed
there was a small 300 vehicle increase in traffic during those hours,
but, without detailed drawtender logs showing the actual problem is
with recreational vessels it is difficult to adjust the schedule to
address the concerns. The Charles Berry Bridge, mile 0.6, has a
vertical clearance of 33 feet in the closed positions that allows most
recreational vessels to pass under the bridge safely without an
opening. Even under the prior regulations, commercial traffic was
provided an opening on signal without restrictions. As such, there was
no guarantee that the bridge would be open between 3 p.m. and 5 p.m.,
and despite the recent dredging activity and break wall repair activity
along the Black River over the past three years, the Coast Guard has
not received any complaints arising from increased unrestricted vessel
traffic requiring on demand bridge openings.
Terminal Ready Mix provided comments concerned with delays to
vessels delivering materials to the docks in the winter and that their
trucks crossing the Charles Berry Bridge, mile 0.6, would have to stop
frequently for recreational vessels. However, the
[[Page 24382]]
winter regulations have been in effect since 1986, and the Coast Guard
has not received any complaints from commercial docks or the freighters
that visit Lorain regarding the winter hours. Additionally, almost all
the bridge openings were for the passage of freighters or tugs
performing harbor maintenance. The Coast Guard has no record of delay
from commercial vessels related to bridge openings, and there have been
very limited recreational vessel requests for bridge openings. Concerns
that road surface maintenance may delay cement trucks crossing the
Lofton Henderson Memorial Bridge, mile 2, a fixed bridge, should be
addressed to the Federal Highway Administration for consideration.
The ODOT submitted two comments and did not object to removal of
opening restrictions for recreational vessels at various hours of the
day, but expressed a desire to maintain the hourly and half hour
openings for recreational vessels, even though the quarterly drawtender
logs show very limited openings for any recreational vessels, except
for the spring and fall migration of recreational vessels heading to
and from the local boat storage yard. Additional drawtender logs
submitted by ODOT listed several openings for commercial vessels, and
only sporadic openings for recreational vessels.
Bridges across the navigable waters of the United State are
considered obstructions to vessel navigation and are permitted only
when they serve the needs of land transportation. While the public
right of navigation is paramount to land transportation, it is not
absolute. This right may be diminished to benefit land transportation,
provided that the reasonable needs of navigation are not impaired. The
documentation available indicates there is very little recreational
traffic that requires the Charles Berry Bridge, mile 0.6, to open, and
most of the openings that occur are for commercial vessels that are not
subject to opening restrictions, therefore there is little disparity
between the modes of transportation.
Special events, like July 4th Fireworks and local homecoming
parades, could temporarily increase vehicle traffic. In those
circumstances the city may request the Coast Guard District Commander
to grant a special deviation to the regulations to allow the bridge to
remain closed while traffic clears from such events.
During our review, we discovered a clause allowing for the bridge
to operate with a 1-hour advance notice. Because the clause has not
been utilized since 1995, all commenters that addressed the provision
agreed it was unnecessary to remain. As such, we have deleted it from
the final rule.
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 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.
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 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.
We did not receive any comments from 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,
[[Page 24383]]
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.
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. 117.850 to read as follows:
Sec. 117.850 Black River.
(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.
Jonathan Hickey,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2024-07368 Filed 4-5-24; 8:45 am]
BILLING CODE 9110-04-P