Proposed Rule2021-13701
Drawbridge Operation Regulation; New River, Fort Lauderdale, FL
Primary source
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Published
June 29, 2021
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
On July 13, 2020, the Coast Guard published a notification of proposed rulemaking (NPRM) to change the operating schedule that governs the Florida East Coast (FEC) Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, Florida. This proposed change would allow the drawbridge to operate on a more predictable schedule. The Coast Guard is publishing this supplemental notice of proposed rulemaking (SNPRM) as considerable time has passed since the NPRM was published and minor modifications have been made to the proposed rule. We invite your comments on this proposed rulemaking.
Full Text
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<title>Federal Register, Volume 86 Issue 122 (Tuesday, June 29, 2021)</title>
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[Federal Register Volume 86, Number 122 (Tuesday, June 29, 2021)]
[Proposed Rules]
[Pages 34172-34175]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13701]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG-2019-0955]
RIN 1625-AA09
Drawbridge Operation Regulation; New River, Fort Lauderdale, FL
AGENCY: Coast Guard, DHS.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: On July 13, 2020, the Coast Guard published a notification of
proposed rulemaking (NPRM) to change the operating schedule that
governs the Florida East Coast (FEC) Railroad Bridge across the New
River, mile 2.5, at Fort Lauderdale, Florida. This proposed change
would allow the drawbridge to operate on a more predictable schedule.
The Coast Guard is publishing this supplemental notice of proposed
rulemaking (SNPRM) as considerable time has passed since the NPRM was
published and minor modifications have been made to the proposed rule.
We invite your comments on this proposed rulemaking.
DATES: Comments and related material must reach the Coast Guard on or
before July 29, 2021.
[[Page 34173]]
ADDRESSES: You may submit comments identified by docket number USCG-
2019-0955 using Federal e-Rulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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
supplemental proposed rule, call or email Ms. Jennifer Zercher, Bridge
Management Specialist, Seventh Coast Guard District, telephone 305-415-
6740, email <a href="/cdn-cgi/l/email-protection#3b715e5555525d5e49157515615e4958535e497b4e48585c15565257"><span class="__cf_email__" data-cfemail="b6fcd3d8d8dfd0d3c498f898ecd3c4d5ded3c4f6c3c5d5d198dbdfda">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
SNPRM Supplemental notice of proposed rulemaking
ANPRM Advance Notice of Proposed Rulemaking
Pub. L. Public Law
Sec. Section
U.S.C. United States Code
FL Florida
FRA Federal Rail Administration
FECR Florida East Coast Railway
FEC Florida East Coast
VTUS-F Virgin Trains USA-Florida, LLC
MIASF Marine Industries Association of South Florida
II. Background, Purpose and Legal Basis
The Florida East Coast (FEC) Railroad Bridge across the New River,
mile 2.5, at Fort Lauderdale, Florida is a single-leaf bascule railroad
bridge with a four-foot vertical clearance at mean high water in the
closed position. Traffic on the waterway includes both commercial and
recreational vessels. Brightline, formerly Virgin Trains--USA Florida
(VTUS-F), with support from the bridge owner, Florida East Coast
Railway (FECR), requested a change to the drawbridge operating schedule
due to an increase in rail traffic in recent years. The operating
schedule for the bridge set forth in 33 CFR 117.313(c) no longer
balances the needs of vessel and rail traffic.
On January 23, 2020, the Coast Guard published a Test Deviation,
with a request for comments, entitled Drawbridge Operation Regulation;
New River, Fort Lauderdale, FL in the Federal Register (85 FR 3852), to
test the proposed operating schedule for the FEC New River Railroad
Bridge. Seven comments were received and addressed in the NPRM.
On July 13, 2020, the Coast Guard published a Notice of Proposed
Rulemaking entitled Drawbridge Operation Regulation; New River, Fort
Lauderdale, FL in the Federal Register (85 FR 41932). During the
comment period that ended August 12, 2020, we received two comments and
those comments are addressed in Section III of this SNPRM.
We are issuing this supplemental proposal as considerable time has
passed since the NPRM was published and comments were considered after
the comment period had closed that lead to minor changes to the
proposed rule. An Ex Parte Memorandum summarizing the communication is
available in the docket.
The Coast Guard is issuing this proposed rule under authority 33
U.S.C. 499.
III. Discussion of Comments and Change
Two comments were received. One comment received was a re-
submission by Brightline, formerly VTUS-F, which was addressed in the
NPRM.
The second comment addressed concerns with the abbreviated vessel
traffic study, interpretation of and language used in the proposed
regulation. The commenter felt the inclusion of the abbreviated vessel
traffic study might not have represented an accurate impact on the
waterway as train service was disrupted by the coronavirus pandemic.
The Coast Guard evaluated the survey provided. A decision was made to
consider the data as train service was not reduced until March 18,
2020, the last day of the study.
The commenter's interpretation of the requirement to publish the
10-minute opening periods is correct. The requirement to publish the
10-minute opening periods applies to fixed 10-minute periods and the
additional 10-minute periods from Noon to 2:59 p.m.
In regards to the commenter's interpretation of paragraph (5),
actions taken by the Coast Guard, the Coast Guard will follow
notification procedures to the maritime community as outlined by Coast
Guard policy. Additionally, the Coast Guard will clarify who is to
maintain the drawbridge log, mobile application and website in
paragraphs (6) and (7) by adding the phrase ``by the drawbridge owner''
to the regulation.
The commenter requested to add language in paragraph (7)(ii), that
would require notification of emergency circumstances be included on
the website and mobile application. The following language was added
``. . . schedules, including but not limited to impacts due to
emergency circumstances, minor repairs and inspections . . .''
The commenter's interpretation of the paragraph (8)(iii) is
accurate. The drawbridge must open after the passage of rail traffic.
However, the bridge may remain closed to navigation if periodic
maintenance or inspections will be conducted in accordance with
paragraph (1).
Lastly, the Coast Guard received a request from Marine Industries
Association of South Florida (MIASF) to review and potentially define
the term ``minor repairs'' as written in the propose rule after the
comment period had closed. The Coast Guard evaluated the term ``minor
repairs'' as it relates to drawbridge operating regulations and Federal
Rail Administration (FRA) regulations. The Coast Guard does not define
nor quantify ``minor repairs'' when authorizing federal drawbridge
operation regulations; whereas FRA outlines what constitutes ``major
repairs'' in 49 CFR 232.303. The Coast Guard made the decision to
remove ``minor repairs'' from the proposed rule and include the
following ``. . . and to perform periodic maintenance authorized in
accordance with subpart A of this part.''
IV. Discussion of Proposed Rule
The proposed rule will allow the drawbridge to operate on a more
predictable schedule. Under this proposed regulation, the draw of the
FEC Railroad Bridge would provide a pre-determined 10-minute opening
between 5:00 a.m. and 11:59 p.m. An additional 10-minute opening would
be provided at various times throughout the day. A mobile application
and website shall be maintained depicting the operational status of the
drawbridge. This SNPRM proposes to remove ``minor repairs'' from the
proposed regulatory text. This action allows for consistency with
regulatory language frequently used in other regulations in 33 CFR part
117 subpart B. There are no other proposed changes to the operating
schedule. The regulatory text we are proposing appears at the end of
the document.
This proposed change would still allow vessels that are capable of
transiting under the bridge, without an opening, to do so at any time
while taking into account the reasonable needs of other modes of
transportation. Vessels in distress and public vessels of the United
States must be allowed to pass at any time or as soon as the train has
cleared the bridge.
[[Page 34174]]
V. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and Executive Orders related to rulemaking. Below we summarize our
analyses based on these statutes and Executive Orders and we discuss
First Amendment rights of protestors.
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 SNPRM has not been designated a ``significant
regulatory action,'' under Executive Order 12866. Accordingly, the
SNPRM has not been reviewed by the Office of Management and Budget.
(OMB).
This regulatory action determination is based on the ability that
vessels can continue to transit the bridge at designated times
throughout the day and when trains are not crossing or when a vessel is
in distress.
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 certifies under 5 U.S.C. 605(b) that this
proposed rule would 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 proposed rule would not have a significant economic impact
on any vessel owner or operator.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule would have
a significant economic impact on it, please submit a comment (see
ADDRESSES) explaining why you think it qualifies and how and to what
degree this rule would economically affect it.
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 proposed 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. The Coast Guard will not retaliate against small entities that
question or complain about this proposed rule or any policy or action
of the Coast Guard.
C. Collection of Information
This proposed rule would call 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 proposed 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 proposed rule does not have tribal implications under
Executive Order 13175 (Consultation and Coordination with Indian Tribal
Governments) because it would 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. If
you believe this proposed rule has implications for federalism or
Indian tribes, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section.
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 proposed rule will not
result in such an expenditure, we do discuss the effects of this
proposed 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 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 proposed rule promulgates the operating
regulations or procedures for drawbridges. Normally such actions are
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. We seek any comments or
information that may lead to the discovery of a significant
environmental impact from this proposed rule.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to coordinate protest activities so that
your message can be received without jeopardizing the safety or
security of people, places or vessels.
VI. Public Participation and Request for Comments
We view public participation as essential to effective rulemaking,
and will consider all comments and material received during the comment
period. Your comment can help shape the outcome of this rulemaking. If
you submit a comment, please include the docket number for this
rulemaking, indicate the specific section of this document to which
each comment applies, and provide a reason for each suggestion or
recommendation.
We encourage you to submit comments through the Federal eRulemaking
Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. If your material cannot be
submitted using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, contact the person in the
FOR FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
We accept anonymous comments. All comments received will be posted
without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and will include any
personal information you have provided. For more about privacy and
submissions in response to this document, see DHS's eRulemaking
[[Page 34175]]
System of Records notice (85 FR 14226, March 11, 2020).
Documents mentioned in this SNPRM as being available in this docket
and all public comments, will be in our online docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and can be viewed by following that website's
instructions. Additionally, if you go to the online docket and sign up
for email alerts, you will be notified when comments are posted or a
final rule is published.
List of Subjects in 33 CFR Part 117
Bridges.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 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 Department of
Homeland Security Delegation No. 0170.1.
0
2. Amend Sec. 117.313 by revising paragraph (c) to read as follows:
Sec. 117.313 New River.
* * * * *
(c) The draw of the Florida East Coast (FEC) Railroad Bridge across
the New River, mile 2.5, at Fort Lauderdale shall operate as follows:
(1) The drawbridge shall be maintained in the fully open-to-
navigation position for vessels at all times, except during period when
it is closed for the passage of rail traffic, inspections and to
perform periodic maintenance authorized in accordance with subpart A of
this part.
(2) The drawbridge shall not be closed to navigation for more than
60 consecutive minutes.
(3) The drawbridge shall open and remain open to navigation for a
fixed 10-minute period each hour from 5 a.m. to 11:59 p.m., except that
the drawbridge shall be open at the following times which shall serve
as the hourly fixed 10-minute period:
--7:00 a.m. until 7:10 a.m.
--9:00 a.m. until 9:10 a.m.
--4:00 p.m. until 4:10 p.m.
--6:00 p.m. until 6:10 p.m.
--10:00 p.m. until 10:10 p.m.
(i) Additionally, in each hour from 12:00 p.m. to 2:59 p.m., the
drawbridge shall open and remain open to navigation for an additional
10-minute period.
(ii) The 10-minute opening periods shall be published on a
quarterly basis by the drawbridge owner and reflected on the drawbridge
owner's website and mobile application.
(4) The drawbridge shall have a drawbridge tender onsite at all
times who is capable of physically tending and operating the drawbridge
by local control, if necessary, or when ordered by the Coast Guard.
(i) The drawbridge tender shall provide estimated times of
drawbridge openings and closures, upon request.
(ii) Operational information will be provided 24 hours a day on
VHF-FM channels 9 and 16 or by telephone at (305) 889-5572. Signs shall
be posted visible to marine traffic and displaying VHF radio contact
information, website and application information, and the telephone
number for the bridge tender.
(5) In the event of a drawbridge operational failure, or other
emergency circumstances impacting normal drawbridge operations, the
drawbridge owner shall immediately notify the Coast Guard Captain of
the Port Miami and provide an estimated time of repair and return to
normal operations.
(6) A drawbridge log shall be maintained including drawbridge
opening and closing times. The drawbridge log should include reasons
for those drawbridge closings that interfere with scheduled openings in
this part. This drawbridge log shall be maintained by the drawbridge
owner and upon request, be provided to the Coast Guard.
(7) A website and mobile application shall be maintained by the
drawbridge owner and publish:
(i) Drawbridge opening times required by this subsection;
(ii) Timely updates to schedules; including but not limited to
impacts due to emergency circumstances, minor repairs and inspections;
(iii) At least 24-hour advance notice for each schedule in order to
facilitate planning by maritime operators; and
(iv) To the extent reasonably practicable, at least 60-minutes
advance notice of schedule changes or delays.
(8) The drawbridge shall display the following lights:
(i) When the drawbridge is in the fully open position, green lights
shall be displayed to indicate that vessels may pass.
(ii) When rail traffic approaches the block signal, the lights
shall go to flashing red, then the drawbridge lowers and locks, and the
lights shall remain flashing red.
(iii) After the rail traffic has cleared the drawbridge, the
drawbridge shall open and the lights return to green.
* * * * *
Dated: June 21, 2021.
Eric C. Jones,
Rear Admiral, U.S. Coast Guard, Commander Seventh Coast Guard District.
[FR Doc. 2021-13701 Filed 6-28-21; 8:45 am]
BILLING CODE 9110-04-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.