[Federal Register Volume 88, Number 70 (Wednesday, April 12, 2023)]
[Proposed Rules]
[Pages 21940-21944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-07647]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2022-0237]
RIN 1625-AA09


Drawbridge Operation Regulation; Keweenaw Waterway, Between 
Houghton and Hancock, MI

AGENCY: Coast Guard, DHS.

ACTION: Notification of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to change the operating schedule that 
governs the US41 Bridge, mile 16.0, over the Keweenaw Waterway between 
the towns of Houghton and Hancock, Michigan. The Michigan Department of 
Transportation, who owns and operates the bridge, has requested a 
change to the drawbridge operation schedule to help facilitate the 
movement of all modes of transportation at the bridge. We invite your 
comments on this proposed rulemaking.

DATES: Comments and related material must reach the Coast Guard on or 
before June 12, 2023.

ADDRESSES: You may submit comments identified by docket number USCG-
2022-0237 using Federal Decision-Making Portal at https://www.regulations.gov.
    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 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
DHS Department of Homeland Security
FR Federal Register
IGLD85 International Great Lakes Datum of 1985
LWD Low Water Datum Based on IGLD85
OMB Office of Management and Budget
MDOT Michigan Department of Transportation
NPRM Notice of Proposed Rulemaking (Advance, Supplemental)
Sec.  Section
U.S.C. United States Code

II. Background, Purpose and Legal Basis

    The US41 Bridge, mile 16.0, over the Keweenaw Waterway between the 
towns of Houghton and Hancock, Michigan, is owned and operated by MDOT 
and is the only crossing over the waterway. The US41 Bridge, mile 16.0, 
over the Keweenaw Waterway is a combination highway and railroad double 
deck lift bridge that provides a horizontal clearance of 7-feet in the 
down position, 103-feet in the open position, and 35-feet in the 
intermediate position above LWD.
    The Keweenaw Waterway divides the Keweenaw Peninsula and is in the 
middle of the south shore of Lake Superior, a Great Lake known for 
hazardous weather conditions.
    The federal government improved the Keweenaw Waterway in 1861 to 
accommodate interstate commerce and create a harbor of safe refuge for 
vessels caught in bad weather and is located halfway between Duluth, 
Minnesota and Sault Ste. Marie, Michigan. Commercial vessels, including 
some over 700-feet in length, and powered and non-powered recreational 
vessels utilize the waterway. The passenger vessel RANGER III operates 
from the east side of the US41 Bridge, mile 16.0, over the Keweenaw 
Waterway to Isle Royal and is operated by the National Park Service 
with a capacity of 128-passengers. A U.S. Coast Guard Station is 
located at the far west end of the waterway.
    The bridge has special operating conditions listed in 33 CFR 
117.635 that requires the bridge to open on signal; except that from 
April 15 through December 14, between midnight and 4 a.m., the draw 
shall be placed in the intermediate position and open on signal if at 
least 2 hours' notice is given. From December 15 through April 14 the 
draw shall open on signal if at least 12 hours' notice is given.
    MDOT has requested a new operating schedule to relieve commuter and 
commercial vehicle traffic congestion at the bridge on weekdays; the 
new schedule will not apply to federal holidays. Traffic data impacted 
by COVID-19 restrictions would not provide the public with an accurate 
assessment of the traffic conditions at the bridge and have 
intentionally not been considered.

III. Discussion of Proposed Rule

    The MDOT requested three ``rush hour restrictions for openings at 
the bridge to ease the traffic congestion at the crossing. During the 
test deviation we gathered data and proved there was not three rush 
hours at the bridge but rather a gradual increase throughout the day in 
the number of vehicles crossing the bridge. From there we developed a 
test deviation to gather data throughout the summer and developed the 
proposed rule.
    On November 1, 2022, we published in the Federal Register (87 FR 
30418) a Notice of temporary deviation from regulations with a request 
for comments. The commenting period was open from May 1, 2022, through 
November 1, 2022, to give everyone ample time to observe the test 
deviation and comment. The State of Michigan's Department of 
Transportation gathered data throughout the test deviation, and we will 
present that data later in this document.
    The test deviation and how the public could comment was shared in 
the local online newspapers, television, and radio stations. The Coast 
Guard informally reached out to local government and local marine users 
before the test deviation was started to see what the perceived issues 
were at the bridge and how scheduled openings could help alleviate the 
disparities between vehicle crossings and vessel traffic.
    The Coast Guard advertised the test deviation in the Local Notice 
to Mariners and a Broadcast Notice to Mariners that was also released. 
The Ninth Coast Guard Bridge Office also included the test deviation in 
its weekly bridge email that is shared with approximately 350 waterway 
users.
    The Michigan Department of Transportation provided vehicle crossing 
data during the test deviation to discover if there were peak traffic 
hours often referred to as rush hours at this crossing. The following 
chart shows the vehicle data collected.
BILLING CODE 9110-04-P

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[GRAPHIC] [TIFF OMITTED] TP12AP23.026

    There is a traffic spike on June 15 and June 16 associated with a 
festival celebrating the bridge. Otherwise the data proves the delays 
at the bridge are not commensurate with traditional rush hour times and 
limiting bridge openings to three times a day would not help elevate 
congestion at the bridge. The bridge experiences a steady flow of 
traffic from 7 a.m. to 7 p.m.
[GRAPHIC] [TIFF OMITTED] TP12AP23.027

    Local politicians and law enforcement departments insisted that 
there are three definite rush hours at the bridge and limiting openings 
during those times would successfully improve the flow of traffic; 
however, the data provided does not support the theory of three 
distinct rush hours at the bridge. Based on the data above provided by 
the MDOT the flow of traffic increases from 6 a.m. to 4 p.m. and then 
it reduces without any significant spikes typical in a rush hour.

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    We analyzed the data from the test deviation using the drawtender 
logs to determine what class of vessel requested the most openings. 
Recreational vessels request openings 55 times between the hours of 7 
a.m. and 7 p.m. and the Passenger vessel Ranger III requested 43 
openings during the same times.
    During the test deviation between 7 a.m. and 7 p.m., Monday through 
Friday, less federal holidays, vessels 300 feet and smaller were 
required to wait for an opening on the hour or half-hour. This limited 
bridge openings to a 20-minute period every hour allowing vehicles to 
cross the bridge during the other 40-minutes. The test deviation proved 
that the reasonable needs of navigation can still be met at the bridge 
with scheduled openings.
    We invited the public to comment on this test deviation and we 
received three comments. Two commentors provided an analysis based on 
their personal preference without providing any supportive data. The 
third comment was from the National Parks Service--Isle Royale National 
Park.
    The National Parks Service stated the test deviation did not 
provide any opportunity for stakeholder input prior to its 
implementation. However, in fact, the Coast Guard reached out directly 
to the park and the Passenger Vessel Ranger III when we reached out to 
local stake holders prior to developing a test schedule. With the 
assistance of the MDOT and local Coast Guard Units we received comments 
from the city of Houghton and Hancock, the Upper Peninsula Health Care 
Group, the Houghton County Board of Commissioners, the Aspirus Keweenaw 
Hospital, the Houghton County Sheriff Office, and the Michigan 
Department of State Police Calumet Post. Additionally, the local news 
outlets ran stories and interviews that the Coast Guard was considering 
a schedule that would help balance both land and waterway modes of 
travel at this crossing. Prior to the test deviation going into effect 
several news outlets published the test deviation to the public.
    National Parks Service--Isle Royale National Park also commented 
that the temporary deviation negatively impacted their passenger 
vessel, the Ranger III, by adding expense to their services and claimed 
a significant inconvenience to passengers without providing any data on 
how delaying their arrival or departures by 10 or 15 minutes would 
adversely affect their services.

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BILLING CODE 9110-04-C
    Almost 50% of the requested openings were from the Ranger III. The 
Ranger III is not the only issue delaying vehicular traffic, but it is 
a significant factor to consider if scheduled openings are needed at 
this location. Awarding the Ranger III clemency to the proposed bridge 
schedule would fail to balance the transportation needs at the bridge 
and would eliminate the need for scheduled bridge openings.
    Commercial vessels over 300 feet and government vessels normally 
enter the waterway to service the aids to navigation and stock rock 
salt for the community. Large commercial vessels holding position in 
the canal along with recreational vessels is dangerous due to their 
size and limited maneuverability and will be passed through the draw of 
the bridge as soon as possible.

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.

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 twice an hour.

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 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

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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 https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2022-0237 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 https://www.regulations.gov, 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 https://www.regulations.gov 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. 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 of any 
posting or updates to the docket.
    We accept anonymous comments. Comments we post to https://www.regulations.gov 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; and DHS Delegation No. 
0170.1, Revision No. 01.3.

0
2. Revise Sec.  117.635 to read as follows:


Sec.  117.635  Keweenaw Waterway

    The draw of the U.S. 41 Bridge, mile 16, shall open on signal, 
except that:
    (a) From April 15 through December 14, between the hours of 7 a.m. 
and 7 p.m. Monday through Friday, less Federal Holidays, the bridge 
shall open on signal from five minutes before to five minutes after the 
hour and half hour for vessels. Documented vessels over 300-feet shall 
not be held at the bridge but will be passed as soon as possible.
    (b) From April 15 through December 14 between midnight and 4 a.m. 
daily, the draw shall be placed in the intermediate position and open 
on signal if at least 2 hours' notice is given.
    (c) From December 15 through April 14 the draw shall open on signal 
if at least 12 hours' notice is given.

M.J. Johnston,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2023-07647 Filed 4-11-23; 8:45 am]
BILLING CODE 9110-04-P


