Rules and Regulations. Final rule

Agency: Coast Guard, DHS
Action: Final rule
Citation: FR Doc. 04-3621 · RIN 1625-AA09 · CGD07-03-118 · 33 CFR 117

Summary

The Coast Guard is changing the operating regulations of the Miami River drawbridges from the mouth of the river up to and including the N.W. 27th Avenue Bridge, mile 3.7, Miami, Florida. This rule adds a one-hour curfew during the noon hour for the Brickell Avenue, Miami Avenue, and S.W. Second Avenue bridges and places the Brickell Avenue Bridge on an hour and half-hour schedule. In addition, the draws shall open at any time for tugs, tugs with tows, and vessels in emergency situations.

Dates

This rule is effective March 22, 2004.

Supplementary Information

Regulatory History On August 11, 2003, the Coast Guard published a Notice of Proposed Rulemaking (NPRM) entitled Drawbridge Operation Regulations; Miami River, Miami-Dade County, FL, in the Federal Register (68 FR 47520). We received 78 comments on this NPRM. No public hearing was requested, and none was held. Background and Purpose Ten bridges along the Miami River fall under existing regulation 33 CFR 117.305. These bridges carry commuter traffic into and out of the downtown Miami area and its neighboring business districts. The current regulation requires the draw of each bridge from the mouth of the Miami River, up to and including the N.W. 27th Avenue Bridge, mile 3.7 at Miami, to open on signal; except that, from 7:30 to 9 a.m. and 4:30 to 6 p.m., Monday through Friday except Federal holidays, the draws need not open for the passage of vessels. Public vessels of the United States and vessels in emergency situations involving danger to life or property are passed at any time. First, this rule adds an additional one-hour closure period for the noon rush hour, Monday through Friday, except Federal holidays, to the Brickell Avenue, Miami Avenue and S.W. Second Avenue bridges, in order to provide relief for vehicular traffic. This is in addition to the morning and afternoon closure periods. Second, the first bridge at the mouth of the river, the Brickell Avenue Bridge, which has a vertical clearance of 23 feet at mean high water and a horizontal clearance of 90 feet, will open only on the hour and half-hour. According to bridge tender logs, the Brickell Avenue Bridge currently opens fewer than two times per hour. The Brickell Avenue Bridge carries the majority of the vehicular traffic utilizing the ten bridges along the Miami River, and this rule provides commuters the opportunity to time their arrivals and departures. Draws shall open at any time for tugs, tugs with tows, and vessels in emergency situations. The third modification alleviates the burden on commercial tugs and tugs with tows that navigate the river only during certain tidal conditions. These vessels will be able to pass when optimal tidal conditions exist, notwithstanding the closure periods and the opening schedule in the rule. These changes will be in effect from 7 a.m. until 7 p.m., Monday through Friday, except Federal holidays. Discussion of Comments and Changes We received 78 comments on the NPRM, in favor of the proposed rule. One comment recommended that the noon closure period apply only to the Brickell Avenue, Miami Avenue and S.W. Second Avenue bridges, instead of all ten bridges up to and including N.W. 27th Avenue, mile 3.7. Applying a noon closure period to only these three bridges, vice all ten bridges, would still allow downtown traffic to pass during heavy noon time periods, and provide for the reasonable needs of navigation. We carefully considered the comment and agree. The final rule now requires noon closure periods for only the Brickell Avenue Bridge, the Miami Avenue Bridge and the S.W. Second Avenue Bridge. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. The rule affects vessel traffic through these bridges only in that vessels will need to time their passage through these bridges to avoid the additional afternoon hour closure and meet the hour and half-hour openings of the Brickell Avenue Bridge. The rule also affects heavy commercial traffic, which will now be able to pass during certain tidal periods. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. 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. The rule affects all vessel traffic through these bridges. Vessels will need to time their passage through these bridges to avoid the additional afternoon hour closure and to meet the hour and half-hour openings of the Brickell Avenue Bridge. The rule also affects heavy commercial traffic, which will now be able to pass during certain tidal periods. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking. The Coast Guard offered small businesses, organizations, or governmental jurisdictions that believed the rule would affect them, or that had questions concerning its provisions or options for compliance, to contact the person listed in FOR FURTHER INFORMATION CONTACT . 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). 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). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. 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 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 the preamble. Taking of Private Property This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments 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. Energy Effects We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order, because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a statement of Energy Effects under Executive Order 13211. Environment We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. 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 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under authority of Pub. L. 102-587, 106 Stat. 5039. 2. Revise § 117.305 to read as follows: § 117.305 Miami River. (a) General. Public vessels of the United States, tugs, tugs with tows, and vessels in a situation where a delay would endanger life or property shall, upon proper signal, be passed through the draw of each bridge listed in this section at any time. (b) The draws of the S.W. First Street Bridge, mile 0.9, up to and including the N.W. 27th Avenue Bridge, mile 3.7 at Miami, shall open on signal; except that, from 7:35 a.m. to 8:59 a.m. and 4:45 p.m. to 5:59 p.m., Monday through Friday, except Federal holidays, the draws need not open for the passage of vessels. (c) The draws of the Miami Avenue Bridge, mile 0.3, and the S.W. Second Avenue Bridge, mile 0.5, at Miami, shall open on signal; except that, from 7:35 a.m. to 8:59 a.m., 12:05 p.m. to 12:59 p.m. and 4:35 p.m. to 5:59 p.m., Monday through Friday, except Federal holidays, the draws need not open for the passage of vessels. (d) The draw of the Brickell Avenue Bridge, mile 0.1, at Miami, shall open on signal; except that, from 7 a.m. to 7 p.m., Monday through Friday except Federal holidays, the draw need open only on the hour and half-hour. From 7:35 a.m. to 8:59 a.m., 12:05 p.m. to 12:59 p.m. and 4:35 p.m. to 5:59 p.m., Monday through Friday except Federal holidays, the draw need not open for the passage of vessels. Dated: January 30, 2004. Harvey E. Johnson, Jr., Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard District. [FR Doc. 04-3621 Filed 2-18-04; 8:45 am]