Drawbridge Operation Regulation; Okeechobee Waterway, Stuart, FL (2024)

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)

§ Section

U.S.C. United States Code

FL Florida

NPRM Notice of Proposed Rulemaking

TIR Temporary Interim Rule

FECR Florida East Coast Railway

FEC Florida East Coast

OWW Okeechobee Waterway

II. Background Information and Regulatory History

The Coast Guard is issuing this temporary interim rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Allowing the drawbridge to return to its regular operating schedule would not meet the reasonable needs of navigation given the increase in railway traffic. The regular operating schedule does not provide predictable and reliable drawbridge openings.

On February 6, 2024, the Coast Guard published a notice of temporary deviation from regulations; request for comments, in the Federal Register (89 FR 8074) which allowed the bridge owner, Florida East Coast Railway (FECR), to deviate from the current operating schedule in 33 CFR 117.317(c). This action was necessary to test an alternate drawbridge operating schedule due to an increase in railway traffic. The test deviation will run past the end date of August 9, 2024, of the General Deviation due to the delay in receipt and Coast Guard analysis of the marine traffic study. The Coast Guard commissioned an independent third party to conduct a marine traffic study to analyze the type, size, time of day and number of vessels that transit through the FEC Railroad Bridge while in the open and closed to navigation positions. The Coast Guard received the draft report on July 11, 2024. The bridge cannot be brought back to the regular operating schedule as it does not meet the reasonable needs of navigation given the increase in railway traffic. Therefore, there is insufficient time to provide a reasonable comment period and then consider those comments before issuing the modification.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective in less than 30 days after publication in the Federal Register . For reasons presented above, delaying the effective date of this rule would be impracticable and contrary to the public interest due to the fact that the bridge's regular operating schedule does not meet the reasonable needs of navigation and does not provide predictable and reliable drawbridge openings.

We are soliciting comments on this rulemaking. If the Coast Guard determines that changes to the temporary interim rule are necessary, we will publish a temporary final rule or other appropriate document.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 499. The FEC Railroad Bridge across the OWW, mile 7.41, at Stuart, FL, is a single-leaf bascule bridge with a six-foot vertical clearance at mean high water in the closed position. The normal operating schedule for the bridge is found in 33 CFR 117.317(c).

The regular drawbridge regulation, 33 CFR 117.313(c), states that the draw is normally in the fully open position . . . when a train approaches the bridge . . . the draw lowers and locks . . . and remains down for a period of eight minutes or while the approach track circuit is occupied. The Coast Guard has determined that allowing the drawbridge to return to its regular operating schedule would not meet the reasonable needs of navigation given the increase in railway traffic. The regular operating schedule does not provide predictable and reliable drawbridge openings. The Coast Guard needs sufficient time to review the marine traffic study and other documentation, while providing continuity in the operation of the drawbridge.

IV. Discussion of the Temporary Interim Rule

The Coast Guard is issuing this rule, which permits a temporary deviation from the operating schedule that governs FEC Railroad Bridge across the OWW, mile 7.41, at Stuart, FL. This rule allows the bridge to provide continuity with predictable and reliable drawbridge openings through 11:59 p.m. on December 31, 2024.

When determining if this temporary deviation will meet the reasonable needs of competing modes of transportation, sufficient time to review and mitigate public comments and the marine traffic study is necessary. The marine traffic study was delayed and the Coast Guard did not receive the draft document until July 11, 2024. A proper review the marine traffic study and mitigation of comments is anticipated to be completed by December 31, 2024.

V. Regulatory Analyses

We developed this temporary interim 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 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 fact that little, or no commercial or recreational vessel traffic will be impacted by this rule. Furthermore, the drawbridge, as of date of the publication of this rule, cannot resume its regular operating schedule as it does not meet the reasonable needs of navigation given the increase in railway traffic. The regular operating schedule does not provide predictable and reliable drawbridge openings.

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 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 Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.

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 Decision-Making Portal at https://www.regulations.gov. To do so, go to https://www.regulations.gov, type USCG-2022-0222 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 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 rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive. Additionally, if you click on the “Dockets” tab and then the proposed rule, you should see a “Subscribe” option for email alerts. Selecting this option will enable notifications when comments are posted, or if/when a final rule is published.

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).

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

1. The authority citation for part 117 continues to read as follows:

Authority: 33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 00170.1. Revision No. 01.3

2. Section 117.261 is amended by staying paragraph (c) and adding paragraph (k).