Proposed Rule2022-12121
Drawbridge Operation Regulation; Three Mile Creek, Mobile, Alabama
Primary source
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Published
June 7, 2022
Issuing agencies
Homeland Security DepartmentCoast Guard
Abstract
The Coast Guard proposes to change the operating schedule that governs the CSX Transportation drawbridge across Three Mile Creek, mile 0.0, Mobile, Mobile County, Alabama. This proposed modification will require the bridge to remain open to navigation for three 75 minute periods each day. We invite your comments on this proposed rulemaking.
Full Text
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<title>Federal Register, Volume 87 Issue 109 (Tuesday, June 7, 2022)</title>
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[Federal Register Volume 87, Number 109 (Tuesday, June 7, 2022)]
[Proposed Rules]
[Pages 34598-34600]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-12121]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG-2021-0301]
RIN 1625-AA09
Drawbridge Operation Regulation; Three Mile Creek, Mobile,
Alabama
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to change the operating schedule that
governs the CSX Transportation drawbridge across Three Mile Creek, mile
0.0, Mobile, Mobile County, Alabama. This proposed modification will
require the bridge to remain open to navigation for three 75 minute
periods each day. We invite your comments on this proposed rulemaking.
DATES: Comments and relate material must reach the Coast Guard on or
before August 8, 2022.
ADDRESSES: You may submit comments identified by docket number USCG
2021-0301 using Federal Decision Making 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 proposed
rule, call or email Doug Blakemore, Eighth Coast Guard District Bridge
Branch at (504) 671-2128 or <a href="/cdn-cgi/l/email-protection#53173c26343f32207d127d113f3238363e3c213613262030347d3e3a3f"><span class="__cf_email__" data-cfemail="eca883998b808d9fc2adc2ae808d878981839e89ac999f8f8bc2818580">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
[[Page 34599]]
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
OMB Office of Management and Budget
NPRM Notice of Proposed Rulemaking (Advance, Supplemental)
Sec. Section
U.S.C. United States Code
II. Background, Purpose and Legal Basis
CSX Transportation has requested to change the operating schedule
of their drawbridge across Three Mile Creek, mile 0.0, Mobile, Mobile
County, Alabama. This bridge is regulated under 33 CFR 117.5 and opens
on signal. It has a vertical clearance of 10' in the closed to vessel
position and is unlimited in the open to vessel position. Navigation on
this creek consists of tows and barges and small industrial vessels.
On June 1, 2021 at the request of CSX, the Coast Guard issued a
temporary deviation to the regulations titled ``Drawbridge Operation
Regulation; Three Mile Creek, AL'' (86 FR 29204). There, we stated that
the 60-day deviation would test a temporary change to the operating
schedule of the CSX drawbridge bridge to determine whether a permanent
change is necessary. From June 1 through August 2, 2021 this deviation
opened the bridge from 6:30 a.m.-7:30 a.m., 2:30 p.m.-3:30 p.m. and
10:30 p.m.-11:30 p.m. to allow vessels to schedule their trips through
Three Mile Creek and opened at all other times on signal. During the
comment period that closed on August 3, 2021, eight comments were
received.
Two commenters stated that the proposal would put maritime
companies at an unfair economic disadvantage in moving commerce
compared to rail transportation. Neither commenter provided data or
economic information. The decision to change or create a drawbridge
regulation rests primarily upon the effect of the proposed change on
navigation and a vessels reasonable ability to use the waterway and to
assure that the change provides for the reasonable needs of navigation
after full consideration of the effect of the proposed action on the
human environment.
Two commenters stated that the temporary operating schedule would
create unsafe navigation conditions. Large vessel queues would be built
up waiting for the bridge to open. When the bridge opens these vessels
would attempt to pass through the bridge at the same time. During the
test deviation the bridge opened about 4 times per day. There were no
indications or reports that unsafe navigation conditions were created
during the 60 day test period.
One commenter stated that the language used in this temporary
regulation change should be changed to remove the term ``if there are
no trains on the bridge.'' This phrase has been removed from the
proposed rule.
One commenter stated that a commerce clause should be placed in
this bridge's regulation to allow free navigation. They cited a U.S.
Supreme Court ruling from 1865, ``Gilman v. Philadelphia.'' This ruling
addressed balancing the needs of waterborne and land commerce around
bridges. The proposed bridge schedule provides three periods during
which the bridge will remain open to navigation and requires that the
bridge open on signal at other times throughout the day.
Several commenters stated that opening the bridge for one hour
period does not allow maritime companies and vessel operators' adequate
time to schedule and complete their transits through Three Mile Creek
and pass through the bridge. The Coast Guard has changed the proposed
rule to require CSX to keep the bridge opened to vessels for 75 minute
periods rather than 60 minutes.
Two commenters stated that they have been losing business because
of CSX practices. Another commenter estimated that two companies, over
a 1 month period, lost up to $15,000 in one month because of bridge
opening delays. This schedule change should allow vessels with
sufficient time to schedule their through the bridge. The bridge will
be required to open at all other times on signal.
The Coast Guard has concluded that there is sufficient information
to change the regulation which will provide vessels with reasonable
time to transit through the bridge and will allow CSX to manage their
railroad business needs.
III. Discussion of Proposed Rule
This proposed rule change would require CSX to open the bridge
three times each day for 75 continuous minutes to allow vessels to
transit through the bridge to and from the Mobile River. And it
requires CSX to open the bridge on signal at all other times when there
are no trains in the block passing over the bridge.
In promulgating drawbridge regulations the Coast Guard must balance
the needs of vessels, land transportation and railroads. The public's
right to navigation is paramount to rail transportation but it is not
absolute. This right may be diminished to benefit land and rail
transportation provided that the reasonable needs of navigation are not
impaired. CSX has informed the Coast Guard that it cannot physically
expand its yard to accommodate building long trains. Vessel operators
and facility operators on Three Mile Creek have informed the Coast
Guard that their businesses have been and are impacted when CSX
stations and passes trains over the bridge and does not open the bridge
on signal. This proposed rule change should provide all entities with
the ability to use Three Mile Creek and the CSX drawbridge bridge.
IV. 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 NPRM has not been designated a ``significant
regulatory action,'' under Executive Order 12866. Accordingly, the NPRM
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 and the bridge will open in case
of emergency at any time.
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 IV.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
[[Page 34600]]
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 Governments
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 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 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.
V. 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 Decision
Making Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. To do so, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, type USCG-2021-0301 in the search box and click
``Search.'' Next, look for this document in the Search Results column,
and click on it. Then click on the Comment option. 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.
To view documents mentioned in this proposed rule as being
available in the docket, find the docket as described in the previous
paragraph, and then select ``Supporting & Related Material'' in the
Document Type column. Public comments will also be placed in our online
docket and can be viewed by following instructions on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> Frequently Asked Questions web page. We review all
comments received, but we will only post comments that address the
topic of the proposed rule. We may choose not to post off-topic,
inappropriate, or duplicate comments that we receive.
We accept anonymous comments. Comments we post to <a href="https://www.regulations.gov">https://www.regulations.gov</a> will include any personal information you have
provided. For more about privacy and submissions in response to this
document, see DHS's eRulemaking System of Records notice (85 FR 14226,
March 11, 2020).
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; DHS Delegation No.
0170.1.
0
2. In Sec. 117.115 redesignate paragraphs (a) and (b) as paragraphs
(b) and (c) and add new paragraph (a) to read as follows:
Sec. 117.115 Three Mile Creek.
(a) The draw of the CSX railroad bridge, mile 0.0., will operate as
follows: each day from 6:30 a.m.-7:45 a.m., 2:30 p.m.-3:45 p.m. and
10:30 p.m.-11:45 p.m. the bridge will remain in the open to navigation
position. At all other times the draw will open on signal and remain
open to clear all vessel queues. CSX will open the draw anytime at the
direction of the District Commander.
* * * * *
Dated: May 31, 2022
R.V. Timme,
Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District.
[FR Doc. 2022-12121 Filed 6-6-22; 8:45 am]
BILLING CODE 9110-04-P
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