[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Rules and Regulations]
[Pages 46021-46023]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11608]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2023-0188]
RIN 1625-AA09


Drawbridge Operation Regulation; Cuyahoga River, Cleveland, OH

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is creating a new operating schedule to govern 
all movable bridges over the Cuyahoga River. The Coast Guard is also 
establishing new rules that will assist mariners signal for and 
anticipate bridge openings. These changes are expected to ensure the 
safe and efficient flow of traffic on the Cuyahoga River.

DATES: This rule is effective June 27, 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-2023-0188) 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
GBCA Greater Cleveland Boating Association
IGLD85 International Great Lakes Datum of 1985
LWD Low Water Datum based on IGLD85
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 22, 2023, the Coast Guard published a Notice of Proposed 
Rulemaking (NPRM), with a request for comments, entitled ``Drawbridge 
Operation Regulation; Cuyahoga River, Cleveland, OH'' in the Federal 
Register (88 FR 32709), to seek your comments on whether the Coast 
Guard should consider modifying the current operating schedule.
    During the comment period that ended July 21, 2023, we received 
five comments. 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 Coast Guard is establishing new rules that will help mariners 
signal for and anticipate bridge openings. The Cuyahoga River is 
considered one of the major industrial centers in the Great Lakes and 
handles several commodities

[[Page 46022]]

for domestic and international commerce, including steel, heavy 
machinery, dry and liquid bulk products, and salt. Heavy recreational 
traffic is concentrated in the Old River and on the Cuyahoga River up 
to mile 2.42 during the summer. This mix of large commercial vessels 
and recreational vessels are a concern to the Coast Guard and mariners 
alike. Mariners have raised concerns to the Ninth Coast Guard District 
regarding the safety and consistency of moveable bridge operations on 
the Cuyahoga River, specifically the Norfolk Southern Railroad Bridge, 
at Mile 0.76.
    The Norfolk Southern Railroad Bridge, at Mile 0.76, is locally 
known as NS1. Mariners have complained for years that it is too slow to 
lift for cruise ships, freighters, and recreational boats transiting 
between the river and Lake Erie. The Coast Guard receives approximately 
two hundred written formal and informal reports of unreasonable bridge 
delays across the Great Lakes region each year; the vast majority 
concern the Norfolk Southern Railroad Bridge, mile 0.76. Businesses in 
the Cleveland Flats neighborhood, a neighborhood adjacent to the 
Norfolk Southern Railroad Bridge, mile 0.76, have expressed that 
problems at the bridge are getting worse. The increase is problems 
appear to stem from increased recreational river traffic and as a 
result of Norfolk Southern's decision to move the bridge's dispatch 
center to Atlanta, Georgia. Local drawtenders maintain that their only 
duty is to open the bridge when the dispatcher in Atlanta, Georgia 
orders them to do so.
    Emergency responders are also cautious when operating near Norfolk 
Southern Railroad Bridge, at Mile 0 76. Norfolk Local police and the 
Coast Guard patrol boats have expressed concern that their boats could 
be trapped behind the bridge, thus delaying emergency response to 
events on the other side.
    Modern bridge regulations are needed to allow vessel operators the 
opportunity to pass through the Cuyahoga River without loitering at the 
bridges and causing a hazardous condition. These regulatory additions 
were proposed in response to those concerns.

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

    The conditions of the NPRM were supported by the comments received 
from the Canadian Chamber of Marine Commerce.
    The GBCA concurred with the requirements proposed in the NPRM, 
including a clock countdown to notify mariners of the next opening of 
the Norfolk Southern Railroad Bridge at Mile 0.76. The GBCA expressed 
its dissatisfaction with operations at Norfolk Southern Railroad Bridge 
at Mile 0.76. The GBCA noted that recreational vessels are often forced 
to wait for a commercial vessel opening, as the bridge operators are 
non-responsive to recreational traffic opening requests.
    The American Waterways Operators is the tugboat, towboat, and barge 
industry's advocate. They commented against requiring a countdown clock 
and would prefer mandated scheduled openings for non-commercial vessels 
to pass through the bridge. The Coast Guard weighed this option, but 
elected to move forward with a countdown clock, as the clock best met 
the needs of recreational boating community as it related to 
transparency and improved communications.
    Norfolk Southern Corporation commented that the Coast Guard did not 
seek appropriate comment from Norfolk Southern prior to the release of 
the NPRM. However, the Coast Guard has invited Norfolk Southern to area 
and regional meetings, including monthly virtual meetings, and the 
public meeting where the contemplated NPRM was discussed in open forum.
    Norfolk Southern commented that they believe the use of a countdown 
clock would cause an unsafe condition at the bridge because some 
vessels may race to the bridge to take advantage of the pending 
opening. To the extent that people may rush toward a bridge opening, 
this is already happening: Large numbers of recreational boaters that 
have been waiting at the bridge, often for over an hour and at times in 
poor weather conditions, crowd the area and rush behind the commercial 
traffic so they can return to their home docks. This problem is caused 
primarily by Norfolk Southern Railroad Bridge's failure to respond to 
requests for an opening. The Coast Guard believes that the 
communication enhancements contained in this final rule, to include a 
countdown clock, will overall improve safety by increasing Norfolk 
Southern's transparency, communications and responsiveness as it 
relates to the boating community.
    Norfolk Southern has argued that rail dispatchers have no idea 
where their trains are or how fast their trains are traveling, and thus 
Norfolk Southern is unable to determine when a train will arrive at the 
bridge, which would render a countdown clock to openings meaningless. 
This comment is not consistent with the Coast Guard's experience as to 
how railroad operators function.
    Most public complaints concern communications between mariners and 
the drawtenders, specifically the perceived lack of responsiveness by 
the drawtenders when mariners request an opening or when they request 
an update for time of the next opening. While the precise cause of each 
individual public complaint is unclear, poor communications between the 
Cleveland drawtender and the dispatcher in Atlanta may also contribute 
to the problem.
    This regulation, including a countdown clock, required posting of a 
phone number, mandatory use of a VHF-FM Marine Radio by the drawtender, 
and mandatory signage, are all efforts to improve safety and 
communications between the drawtender and mariners.
    The Coast Guard made a typographical error in the NPRM that would 
require the new signage to indicate to the public that the bridge is 
remotely operated language. However, the bridge is not currently 
remotely operated, and the Coast Guard does not intend to require a 
statement that the bridge is remotely operated.

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). 
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 
additional communications requirements are a result in years of failure 
for the boating public to contact the drawtender either because of 
overcrowding on VHF-FM marine Channel 16 or other reasons not 
forthcoming from the bridge employees.

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

[[Page 46023]]

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.

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.

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; DHS Delegation No. 
00170.1, Revision No. 01.3.

0
2. Add Sec.  117.848 Cleveland Harbor to read as follows:


Sec.  117.848  Cleveland Harbor.

    (a) The Norfolk Southern Railroad Bridge, mile 0.76, will open on 
signal.
    (1) The bridge owner will maintain and monitor a VHF-FM Marine 
Radio, and telephone.
    (2) The bridge will display a clock that counts down the estimated 
time of the next bridge opening that is visible to vessels approaching 
from the upriver or downriver side of the bridge.
    (3) The bridge will also display a sign readable from vessels 
approaching the bridge from upriver or downriver and readable for 500 
feet that states:
    (i) the name of the bridge;
    (ii) the river mile;
    (iii) the opening signal of the bridge is one prolonged blast 
followed by one short blast of the horn or VHF-FM Marine Radio Channel 
16, or by calling the number posted by the owner.
    (b) All remaining moveable vehicle and railroad bridges on the 
Cuyahoga River will open on signal, except from December 15 through 
March 31 when the bridges will open if a 12-hour advance notice is 
provided. Said bridges include: Willow Avenue Bridge at Mile 1.02; 
Center Street Bridge, mile 1.28; the Columbus Road Bridge, mile 1.93; 
the Flats Industrial Railroad Bridge, mile 2.24; the City of Cleveland 
Railroad Bridge, mile 2.42; the Carter Road Bridge, mile 2.43; the 
Norfolk Southern Railroad Bridge the West 3rd Street Bridge, mile 3.42; 
the CSX Railroad Bridge, mile 4.75; the Cleveland Cliffs Railroad 
Bridge #1, mile 5.42; and the Wheeling & Lake Erie Railroad Bridge.
    (c) The Voinovich Pedestrian Bridge, at the mouth of North Coast 
Harbor, will open on signal except from December 15 through March 31 
when the bridge will open if a 12-hour advance notice is provided.

Jonathan Hickey,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2024-11608 Filed 5-24-24; 8:45 am]
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