[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]


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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, Department of Homeland Security (DHS).

ACTION: Final rule.

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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]
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