02-25930. Drawbridge Operation Regulations; Miami River, Miami-Dade County, FL

AGENCY:

Coast Guard, DOT.

ACTION:

Temporary rule; request for comments.

SUMMARY:

The Coast Guard is temporarily changing the operating regulations of all the drawbridges on the Miami River from the mouth of the River to, and including, the NW 27th Avenue Bridge, mile 3.7, Miami, Florida, to allow tugs and tugs with tows to pass through these bridges, except the new Second Avenue Bridge, upon proper signal to the bridge tender at all times, including during the normal rush hour traffic curfew periods. This rule allows the new Second Avenue Bridge to keep a single leaf in the horizontal (down) position for up to nine hours each day except Wednesdays, beginning three hours after one of the two daily high tides. This rule is intended to facilitate construction of the new Second Avenue Bridge and provide increased relief for tugs and tugs with tows on the Miami River. The construction is scheduled to be accomplished in two phases, the first running from October 7, 2002 to November 18, 2002. The second is scheduled from approximately December 16, 2002 to January 27, 2003. This temporary rule covers the entire period from October 7, 2002 to January 27, 2003, but leaves open the potential for the Coast Guard to change this rule based on comments received.

DATES:

This rule is effective from 12:01 a.m. on October 7, 2002 until 11:59 p.m. on January 27, 2003. Comments must be received by November 18, 2002.

ADDRESSES:

You may mail comments and related material to Commander (obr), Seventh Coast Guard District, Room 432, 909 SE 1st Ave., Miami, FL 33131-3050.

Comments and material received from the public as well as documents indicated in this preamble as being available in the docket are part of docket [CGD07-02-091] and are available for inspection or copying at the Seventh Coast Guard District Bridge Branch, located at the above address, between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Mr. Barry Dragon, Project Officer, Seventh Coast Guard District, Bridge Branch, telephone [phone].

SUPPLEMENTARY INFORMATION:

Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD07-02-091], indicate the specific section of this document to which each comment applies, and give the reason for each comment. The Coast Guard is interested in comments that, among other issues, detail specific economic impact to stakeholders on the Miami River. Please submit all comments and related material in an unbound format, no larger than 81/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them.

Regulatory Information

On August 6, 2002 we published a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulations; Miami River, Miami-Dade County, Florida” in the Federal Register (67 FR 50842). We received twenty-three letters commenting on the proposed rule. A public meeting was requested; none was held for reasons discussed later in this preamble.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register. The Coast Guard is making this rule effective on October 7, 2002 because the contractor will solicit input weekly from the tugboat companies responsible for moving large commercial vessels on the Miami River to develop a coordinated construction schedule to minimize disruption to the large vessel and construction schedules of the Miami River and Second Avenue Bridge, respectively. Allowing the rule to go into effect in less than 30 days will allow construction to begin closer to the scheduled start, thus expediting the completion of the Second Avenue Bridge and elimination of obstructions to navigation due to its construction.

Background and Purpose

On August 6, 2002 we published a Notice of Proposed Rulemaking (NPRM) outlining a request from the Florida Department of Transportation (FDOT) (the bridge owner) and Gilbert Southern Corp. (GSC) (the bridge contractor) to keep a single-leaf of the Second Avenue Bridge in the closed position for periods of time not to exceed eighteen hours daily to facilitate installation of the two bridge leaves.

At an August 21, 2002 meeting, the Coast Guard briefed the bridge owner and contractor of the negative tone of the comments to the proposed rule the Coast Guard had in the docket at that point. Based on this meeting, the owner and contractor met with key stakeholders and requested the Coast Guard change the window originally requested, allowing a single leaf opening of the Second Avenue Bridge for not more than nine hours per day, three hours after one of the two daily high tides. This temporary rule allows this each day except Wednesdays, because that is the busiest day for shipping on the Miami River. The temporary rule better provides for the reasonable needs of navigation while still allowing installation of the two leaves, and thus completion of the bridge, to progress. Additionally, because the comments indicated that large ship movements on the Miami River can only occur on the high tide, the temporary rule reduces the negative economic impact to commercial users of the Miami River by allowing use of one, and part of the second, daily high tide on the River to facilitate large vessel movement. This temporary rule is an effort to meet the reasonable needs of navigation and provide for the construction of the Second Avenue Bridge, which will ultimately improve the navigability of the Miami River.

Discussion of Comments

The Coast Guard received twenty-one comments on the proposed rule; four were in support of it, while seventeen were opposed to it.

Supporting Comments

Comments in support of the proposed rule were by submitted FDOT, the City of Miami City Manager's Office, the Miami-Dade County Public Works Department, and Miami-Dade County Manager's Office. The comment submitted by FDOT listed eight coordination meetings with various Miami River interests, along with the general attendees and discussion topics at the meetings to show the level of attempted coordination between FDOT and various Miami River stakeholders. The Coast Guard acknowledges these comments, but for reasons stated in the “Background and Purpose” section, has modified the original proposed rule and has implemented this temporary rule.

The proposed rule also had a provision temporarily eliminating the operating regulations that allowed Miami River bridges to not open during morning and afternoon vehicle traffic rush hours. Four comments were also in favor of this aspect of the proposed rule and requested it be made permanent. Thus, the Coast Guard kept this provision of the temporary rule. However, the permanency of this elimination is beyond the scope of this rulemaking.

Opposing Comments

Seventeen comments were opposed to the provision of the proposed rule that would allow the bridge owner and contractor to keep a single-span of the Second Avenue Bridge in the horizontal (down) position daily from 4 a.m. to 10 p.m. The Coast Guard changed this provision in this temporary rule as detailed throughout this document.

Eleven comments were in general opposition to allowing a single leaf of the bridge to be in the horizontal (down) position for a maximum of eighteen-hour timeframe. Some comments cited the general negative economic impact that allowing a single leaf of the Second Avenue Bridge to remain in the horizontal (down) position would have on the Miami River cargo industry (two comments) and indirect negative impact on the commenters' businesses because they rely on the larger vessel traffic flow for their businesses (seven comments). One comment asserted that shipping must get “the priority use” of rivers. One comment suggested that the obstruction of the Miami River due to installation of the Second Avenue Bridge leafs be limited to eight hours and any time beyond those eight hours where the Miami River is obstructed be mitigated by a financial subsidy from the bridge contractor to companies negatively impacted. The Coast Guard has no authority to require a subsidy of this type. Thus, it was not incorporated into the temporary rule.

Nine comments cited the negative economic impact that the proposed rule would likely have on the Miami River cargo shipping industry, which uses large vessels to ship goods.

The Coast Guard has considered these comments, and has changed the proposed rule based in part on them, in part on the comments from the bridge owner and contractor requesting to halve the maximum eighteen hour window reflected in the NPRM (see “Background and Purpose”), and in part on other more detailed comments discussed below regarding the proposed rule. This temporary rule allows the Second Avenue Bridge to have single leaf openings six days a week for a maximum of nine hours per day, starting three hours after one of the two daily high tides. The rule requires both leaves of the Second Avenue Bridge to open on Wednesdays because Wednesdays are the busiest day for shipping on the Miami River. These changes directly address the comments about the economic impacts of the rule and will insure that the reasonable needs of navigation are met.

Construction Methodology

Two comments commented on the construction method of the Second Avenue Bridge, declaring that construction of the bridge in the horizontal position is unreasonable and that construction of the bridge must be done in the upright position. In June 2001, July 2002, and August 2002 representatives from the Coast Guard Seventh District Bridge Branch met with representatives of the bridge owner and contractor. The bridge owner and contractor explained the construction methodology behind the bridge and that it could not be practically constructed with leaves in the vertical (upright) position due to the sheer size of each bridge leaf and due to safety concerns for bridge construction workers. Miami River vessel traffic would be impacted for an equal amount of time if the bridge leaves were installed in the vertical (up) position as it would in the horizontal (down) position because of the safety hazard over the waterway that would exist while installing the leaves.

Construction Methodology

Two comments commented on the construction method of the Second Avenue Bridge, declaring that construction of the bridge in the horizontal position is unreasonable and that construction of the bridge must be done in the upright position. In June 2001, July 2002, and August 2002 representatives from the Coast Guard Seventh District Bridge Branch met with representatives of the bridge owner and contractor. The bridge owner and contractor explained the construction methodology behind the bridge and that it could not be practically constructed with leaves in the vertical (upright) position due to the sheer size of each bridge leaf and due to safety concerns for bridge construction workers. The Coast Guard notes that Miami River vessel traffic would be impacted for an equal amount of time if the bridge leaves were installed in the vertical (up) position as it would in the horizontal (down) position because of the safety hazard that would exist over the waterway requiring the limitation of the River's horizontal clearance while installing the leaves. Two commenters requested a public meeting to provide a forum to review the assertion that the Second Avenue Bridge could not be constructed in the vertical (up) position because of the bridge's size and design. Because safety hazards would still exist on the waterway requiring a similar reduction in the horizontal clearance of the Miami River, the Coast Guard sees no new issues arising from a public meeting on this topic, so none was held.

The Proposed Rule Will Shut Down Shipping on the Miami River

Seven comments were opposed to the proposed rule's six-hour time window that the Second Avenue Bridge be open to all traffic because it was too small of a period to have unimpeded vessel traffic flow on the Miami River. Five comments declared that the proposed rule would “basically shut down the river” to all vessel traffic for the duration the rule would be in effect. Two comments cited the tug bottleneck that the proposed rule would create because the six-hour window would force all larger vessel traffic into that window for transiting the Miami River, and traffic would necessarily be delayed. The Coast Guard considered the impact of the proposed rule on the Miami River vessel traffic, noting that large vessel traffic flow is one way on the River due to the limited available width. Two comments mention that the period described in the proposed rule is the “peak season” on the Miami River, and thus would have “devastating” effects on the commerce that runs on the Miami River. One comment discussed Miami River tidal patterns and that at best there would be one high tide and one low tide during the six-hour window from 10 p.m. and 4 a.m. every six days, and large commercial vessel traffic is restricted to movements corresponding with the high tides. The changes in this temporary rule creates a fifteen-hour window that should reduce the traffic concerns that resulted from the limited six-hour window of unimpeded River navigability contained in the original proposed rule.

One of the comments from a marine terminal on the River asserted that the proposed rule would create an additional $2K to $5K expense per vessel. This terminal had over 100 sailings last year. As discussed in detail below, the Coast Guard has adopted a temporary rule that makes explicit the intent to obstruct the Miami River for not more than nine hours per day, six days per week. This should mitigate the economic impact to this terminal because large vessels will be able to use one high tide daily, and part of the second, for movements on the River. Also, the schedule will be published in advance, and should allow for flexibility in scheduling for parties involved on either side of this issue. The temporary rule should also reduce the bottleneck concern. Additionally, the Coast Guard will continue to accept comments on the temporary rule through the first construction phase, and may change it depending on the comments. Comments detailing specific economic impacts such as the one in this paragraph are particularly helpful in evaluating this rule.

The Proposed Rule Was Unfair to Shipping Industry

Three comments stated the proposed rule was unfair to the Miami River shipping industry. The comments state that the proposed rule would instill economic woes on the River shipping industry to benefit the bridge contractor, that it would be unfair to allow the bridge contractor and owner to reap benefits from this planned bridge construction despite their poor planning with local River stakeholders, that the marine industry is severely penalized by bridge design and building contracts that are beyond their control, and that the Coast Guard has chosen to sacrifice an important economic engine in favor of the bridge contractor's prospective profit.

One comment alleged bias shown by the Coast Guard in favor of construction of the Second Avenue Bridge over the needs of navigation.

The Coast Guard uses the “reasonable needs of navigation” as the standard when evaluating projects that potentially impact navigation. The bridge owner and contractor requested the proposed rule. The Coast Guard's view was that to better determine what the needs of navigation were, the proposed rule should be released to solicit comments which would provide the Coast Guard with a basis to determine the reasonable needs of navigation. The Coast Guard has considered these comments and, as noted above, has changed the proposed rule to mitigate the impact to commercial navigation. Through the additional comment period, the Coast Guard encourages comments on this temporary rule, and may make further changes in light of them.

Bridge Owner's Requested Revision

On 21 August 2002 the Coast Guard met with representatives of the bridge owner and contractor and made them aware of the generally negative tone of the comments in the docket at that time. Based on these objections, the bridge owner and contractor modified their request and put forth a proposal that cut in half the amount of time the Miami River could be obstructed by the Second Avenue Bridge. They requested that the Coast Guard revise the proposed rule to allow the Second Avenue Bridge to have one leaf in the down position for not more than nine hours starting three hours after one of the two daily high tides that occur on the Miami River. At all other times, both leaves would open on signal. GSC, as bridge contractor, and on behalf of the bridge owner, in consultation with the two major tug companies that assist in large vessel movements on the River, will submit a coordinated construction schedule to the Coast Guard, specifically, the Captain of the Port of Miami (COTP). The schedule will be reviewed by the COTP, who will promptly announce the schedule through broadcast local notices to mariners and local notices to mariners.

Commenters' Requested Changes

One tug operator on the Miami River commented that the proposed rule should not allow the Second Avenue Bridge to be in the horizontal (down) position for more than six hours, that it should fluctuate with the tidal cycles, that tug operators and GSC must coordinate when the Miami River would be obstructed by the single leaf in the horizontal (down) position, and that on Wednesdays the Miami River must remain unobstructed. The Miami River Commission (MRC), an entity created by the State of Florida to be an official clearinghouse for all public policy and projects on the Miami River, recommended similar provisions. The MRC's comment, however, included a six to ten hour daily window where the Miami River would be obstructed by the single leaf of the Second Avenue Bridge in the horizontal (down) position. Additionally, the MRC reiterates the bridge contractor's comment that details two separate six-week periods where bridge construction would occur. The Miami River Marine Group, a port cooperative trade association made up of stakeholders of the Miami River, commented that the leaf should be in the horizontal (down) position for not more than eight hours per day.

The Coast Guard has considered these comments in conjunction with the comment by the bridge owner and contractor to revise the proposed rule. The Coast Guard notes that MRC's proposal leaves open the option for a maximum ten-hour window daily period where the Miami River would be obstructed due to construction, and the bridge contractor's stated commitment to working with Miami River stakeholders to minimize the impact to commercial marine interests, who necessarily rely on larger vessels that require both leaves to be in the vertical (up) position. The bridge owner and contractor indicated in the August 21, 2002 meeting that they required one hour at either end of their work day to set up and then secure. The Coast Guard has determined, based on all comments received, that nine hours is an appropriate maximum window to allow the installation of the Second Avenue Bridge leaves, which necessarily must be done in the horizontal (down) position, thus restricting the Miami River to an approximately 70-foot horizontal navigation clearance.

Changes to the Proposed Rule

After reviewing the comments received from the NPRM, the Coast Guard has revised the proposed rule to allow GSC to keep a single-leaf of the bridge in the horizontal (down) position nine hours each day except Wednesdays, starting three hours after one of the two daily high tides, generally the first daily high tide. The COTP will review and broadcast the bridge schedule. The bridge owner has agreed to publish the schedule each week, with a proposed schedule for the following week. In addition, tugs and tugs with tows will be exempt from the rush hour curfews on the drawbridges from the mouth of the Miami River to and including the N.W. 27th Avenue Bridge, except the new Second Avenue Bridge.

The bridge owner and contractors' requested revision includes two separate time windows of approximately six weeks each when they would install the two bridge leaves. The bridge contractor anticipates approximately one month between the two time windows. During the approximately one month period between the two construction windows, the Coast Guard does not anticipate the need to approve any schedule that requires the Second Avenue Bridge to impede navigability on the Miami River. The Coast Guard is also allowing an additional comment period and may change this rule based on comments received, and will terminate the rule early if construction is completed early.

This temporary rule incorporates the changes requested by the bridge owner and contractor, those recommended by the MRC as the State of Florida legislated clearinghouse for Miami River issues, and some requested changes from the Miami River Group as a representative entity of stakeholders on the Miami River. The Coast Guard regulates bridges across waterways to provide for the “reasonable needs of navigation.” The Coast Guard must ensure the public right of navigation is preserved while maintaining a reasonable balance between the competing needs of land and waterborne modes of transportation. The Coast Guard strives to promote and expedite projects that facilitate commerce and provide for the reasonable needs of present and prospective land and marine transportation. In this temporary rule the Coast Guard meets the reasonable needs of navigation while still permitting the construction of the Second Avenue Bridge, which will ultimately assist with navigation and the movement of vessel commerce on the Miami River. This temporary rule reduces the Second Avenue Bridge single leaf operations to not more than nine hours per day, six days a week. The Coast Guard may also allow minor deviations to the nine-hour maximum single leaf operation if large vessel traffic will not be affected by the deviation. Expansion of the construction windows through minor deviations should expedite bridge construction ultimately reducing the length of time that large commercial navigation will be potentially obstructed.

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 Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary because this rule requires a multi-interest coordinated schedule based on the high tides that provides for fifteen hours of daily unobstructed vessel flow on the Miami River and use of at least part of both high tides by vessel traffic, the Miami River will be unimpeded by the Second Avenue Bridge on Wednesdays (the busiest day for cargo shipping on the River), approximately seventy feet of horizontal clearance be available twenty four hours each day (although short periods of under one hour with less horizontal clearance are possible due to temporary safety hazards), and the rule only temporarily restricts the waterway.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the Coast Guard has considered whether this rule will have a significant economic effect upon 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 because this rule requires a multi-interest coordinated schedule based on the high tides that provides for fifteen hours of daily unobstructed vessel flow on the Miami River and use of at least part of both high tides by large vessel traffic, the Miami River will be unimpeded by the Second Avenue Bridge on Wednesdays (the busiest day for cargo shipping on the River), approximately seventy feet of horizontal clearance will be available twenty four hours each day (although short periods of under one hour with less horizontal clearance are possible due to temporary safety hazards), and the rule only temporarily restricts the waterway.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the person listed under FOR FURTHER INFORMATION CONTACT. The Coast Guard has created an additional comment period for this temporary rule, and is particularly interested in comments describing specific economic impacts to small entities. This will allow the Coast Guard to better evaluate impacts to small entities. We also have a point of contact for commenting on actions by employees of the Coast Guard. 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 requirements 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 regulatory actions not specifically required by law. 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. Although this rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this 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 Execute 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 would 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 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.

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. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Environment

The Coast Guard has considered the environmental impact of this action and has concluded that under figure 2-1, paragraph 32(e) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket we have indicated under ADDRESSES.

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; 49 CFR 1.46; 33 CFR 1.05-1(g); Section 117.255 also issued under authority of Pub. L. 102-587, 106 Stat. 5039.

§ 117.305

[Suspended]

2. From 12:01 a.m. October 7, 2002 until 11:59 p.m. on January 27, 2003, temporarily suspend § 117.305.

3. From 12:01 a.m. October 7, 2002 until 11:59 p.m. on January 27, 2003, add a new § 117.T306 to read as follows:

§ 117.T306

Miami River, Florida.

(a) The draws of each bridge from the mouth of the Miami River to and including N.W. 27th Avenue bridge, mile 3.7 at Miami, but excluding the new Second Avenue bridge, mile 0.5, Miami, Florida, shall open on signal; except that, from 7:30 a.m. to 9 a.m. and 4:30 p.m. to 6 p.m., Monday through Friday except Federal holidays, the draws need not open for the passage of vessels other than public vessels of the United States, tugs and tugs with tows, and vessels in an emergency involving danger to life or property, which shall be passed at any time.

(b) The new Second Avenue Bridge, mile 0.5, Miami Florida, need open only a single-leaf of the bridge nine (9) hours per day, starting three (3) hours after one of the two high tides, every day except Wednesday. The Captain of the Port of Miami will review and announce a weekly schedule coordinated between the bridge contractor and tugboat operators on the Miami River. At all other times, including all day on Wednesdays, the bridge will open on signal.

Dated: October 1, 2002.

James S. Carmichael,

Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard District.