[Federal Register Volume 86, Number 203 (Monday, October 25, 2021)]
[Rules and Regulations]
[Pages 58799-58801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23201]



[[Page 58799]]

-----------------------------------------------------------------------

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, Department of Homeland Security (DHS).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is changing the operating schedule that 
governs the Florida East Coast (FEC) Railroad Bridge across the New 
River, mile 2.5, at Fort Lauderdale, Florida. This change will allow 
the drawbridge to operate on a more predictable schedule. This action 
should better serve the reasonable needs of both vessel and rail 
traffic.

DATES: This rule is effective November 24, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov. Type USCG-
2019-0955 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 rule, 
call or email Ms. Jennifer Zercher, Bridge Management Specialist, 
Seventh Coast Guard District, telephone 305-415-6740, email 
[email protected].

SUPPLEMENTARY INFORMATION:

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
SNPRM Supplemental notice of proposed rulemaking
Sec.  Section
FL Florida
FRA Federal Rail Administration
FECR Florida East Coast Railway
FEC Florida East Coast
MIASF Marine Industries Association of South Florida
U.S.C. United States Code

II. Background Information and Regulatory History

    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 a proposed operating schedule for the FEC New 
River Railroad Bridge. During the comment period that ended March 30, 
2020, we received seven comments and those comments were 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 were addressed in the SNPRM.
    On June 29, 2021, the Coast Guard published a supplemental notice 
of proposed rulemaking entitled ``Drawbridge Operation Regulation; New 
River, Fort Lauderdale, FL'' in the Federal Register (86 FR 34172). 
During the comment period that ended July 29, 2021, we received four 
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.
    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. The operating schedule for the bridge set forth 
in 33 CFR 117.313(c).
    Traffic on the waterway includes both commercial and recreational 
vessels. Brightline, with support from the bridge owner, Florida East 
Coast Railway (FECR), requested a change to the drawbridge operating 
schedule. Due to the increase in rail traffic, the current operating 
schedule no longer balances the needs of vessel and rail traffic.

IV. Discussion of Comments, Changes and the Final Rule

    Four comments were received. One commenter requested to know if the 
rulemaking on the operation of the bridge is tied to the train schedule 
for a fixed amount of crossings over the river. The rule does not 
consider the train schedules. The bridge is required to be maintained 
in the fully open-to-navigation position for vessels at all times, 
except during periods when it is closed for the passage of rail 
traffic, inspections and to perform periodic maintenance that has been 
authorized by the Coast Guard.
    The second commenter is in support of the proposed rule but had 
recommendations regarding the technical language. The Coast Guard 
considered the recommendation to change paragraph (c)(3)(ii) to read 
``. . . on a quarterly basis or as otherwise required by this 
paragraph.'' because the commenter felt it conflicted with paragraph 
(c)(7). The Coast Guard feels there is no conflict and it is 
unnecessary to add the additional language to paragraph (c)(3)(ii). 
However, after reviewing paragraph (c)(7), we will change 
``subsection'' to ``paragraph'' in paragraph (c)(7)(i). The second 
recommendation was to include ``the performance of periodic 
maintenance'' in paragraph (c)(5). This paragraph states when the 
bridge owner shall contact the Coast Guard Captain of the Port Miami in 
the event of an operational failure or other emergencies impacting 
drawbridge operations. The commenter stated that if the periodic 
maintenance lasted longer than 60 minutes a violation of paragraph 
(c)(2) would occur. The performance of periodic maintenance is 
authorized by the Coast Guard in accordance with subpart A of 33 CFR 
part 117. When periodic maintenance is authorized, it is considered a 
temporary change to the drawbridge operating schedule, therefore, a 
violation of paragraph (c)(2) would not occur.
    The third and fourth commenters provided joint comments. Both 
commenters support the proposed rule with the exception of the addition 
of ``periodic maintenance'' and the removal of ``minor repairs''. They 
believe the term ``periodic maintenance'' introduces new ambiguity and 
the Coast Guard should consider alternate language provided in their 
comments. The commenters feel this regulation has developed into a 
unique regulatory regime and does not allow for routine and necessary 
operations of a railroad bridge, including inspections and minor 
repairs. The language in paragraph (c)(1) is regulatory language used 
in other railroad bridge operating schedules throughout the United 
States, and requires drawbridges be maintained in the fully open 
position at all times, except for rail traffic, inspections, and 
maintenance. The Coast Guard authorizes temporary deviations to 
drawbridge operating schedules in accordance with subpart A of 33 CFR 
part 117. These authorizations include but are not limited to periodic 
maintenance, minor repairs, and events not affecting the operation of 
the drawbridge but may require it to remain closed to navigation 
outside of its published drawbridge operating schedule. The Coast Guard 
feels the language proposed in the SNPRM in paragraph (c)(1) is the 
proper regulatory

[[Page 58800]]

language for this drawbridge operating regulation. It follows other 
drawbridge operating regulations for railroad drawbridges throughout 
the United States.

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, and we 
discuss First Amendment rights of protesters.

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 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 continue to transit the bridge when trains are not 
crossing, at designated times throughout the day and vessels that are 
capable of transiting under the bridge, without an opening, to do so at 
any time. 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.

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 received zero 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.

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.

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 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 periods 
when it is

[[Page 58801]]

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) Notwithstanding paragraph (c)(1) of this section, 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:

                       Table 1 to Paragraph (c)(3)
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
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 section. 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 paragraph (c);
    (ii) Timely updates to schedules; including but not limited to 
impacts due to emergency circumstances, 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: October 15, 2021.
Brendan C. McPherson,
Rear Admiral, U.S. Coast Guard, Commander, Coast Guard Seventh 
District.
[FR Doc. 2021-23201 Filed 10-22-21; 8:45 am]
BILLING CODE 9110-04-P


