[Federal Register Volume 60, Number 68 (Monday, April 10, 1995)]
[Proposed Rules]
[Pages 18061-18063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8759]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 117
[CGD09-95-008]
Drawbridge Operation Regulations; Chicago River, IL
AGENCY: Coast Guard, DOT.
ACTION: Notice of intent to form a negotiated rulemaking committee;
request for public comment and membership.
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SUMMARY: The Coast Guard intends to form a negotiated rulemaking
committee to develop regulations governing the operation of drawbridges
over the Chicago River in Chicago, Illinois for the passage of
recreational vessels. The Coast Guard will establish the committee
under the provisions of the Negotiated Rulemaking Act of 1990 and the
Federal Advisory Committee Act.
DATES: Comments and nominations for membership must be received on or
before May 8, 1995.
ADDRESSES: Comments and nominations for membership should be sent to
Mr. Robert Bloom, Chief, Bridge Branch, Ninth Coast Guard District,
1240 East Ninth Street, Cleveland, Ohio, or may be delivered to room
2083D at the same address between 8 a.m. and 3 p.m., Monday through
Friday, except Federal holidays. The telephone number is (216) 522-
3993. Comments will become part of the docket and will be available for
inspection or copying at room 2083D, at the same address between 8 a.m.
and 3 p.m., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal person involved in drafting this document are Mr.
Robert Bloom, Chief, Bridge Branch, and Commander James M. Collin,
District Legal Officer, Ninth Coast Guard District, Cleveland, Ohio.
Background
On April 18, 1994 (59 FR 18298), the Coast Guard issued an
amendment to its regulation for drawbridge operations on the Chicago
River (33 CFR 117.391). The amendment replaced on-demand drawbridge
openings for recreational vessels, except during rush hour periods,
with significant restrictions on openings, flotilla specifications and
advance notice requirements. Prior temporary deviations to the
regulations, permitted under 33 CFR 117.43, also had restricted
drawbridge openings.
On September 26, 1994, the Coast Guard's action was rescinded by
the United States District Court for the District of Columbia in the
Court's order in the case of Crowley's Yacht Yard, Inc. Plaintiff v.
Federico Pena, Secretary, United States Department of Transportation,
Defendant (C.A. No. 94-1152 SSH), which also reinstated the previous
regulation.
In response to the Court's action and to obtain data for a new
regulatory initiative, the District Commander issued a temporary
deviation to the regulations for the period from October 11, 1994 to
December 5, 1994 and received public comments through January 15, 1995.
The deviation also permitted only limited weekday openings, required
advance notice for openings, and included flotilla specifications.
On February 10, 1995, the District Commander authorized a 90 day
deviation for the period for April 15, 1995 through July 14, 1995,
request written comments, and scheduled a public hearing (60 FR 8941,
February 16, 1995). That deviation, described in the Federal Register
notice, would have required twenty-four hour notice for all openings,
but did not restrict the timing of openings, except to exclude the rush
hour periods recognized in the regulations currently in force. Based on
all information available, including the written comments received to
date and the presentations made at the public hearing held on March 9,
1995 in Chicago, the District Commander has revised the deviation and a
notice of the revisions is published in this issue of the Federal
Register. This revised deviation authorizes limited openings on
specified weekdays with advance notice, as well as weekend openings.
The traditional notice and comment rulemaking process, augmented by
the procedures for deviations, has not generated a permenant and
acceptable resolution to the issue of drawbridge openings on the
Chicago River. Therefore, the Coast Guard intends to form a negotiated
rulemaking committee as an alternative process to produce an acceptable
and enduring amendment to 33 CFR 117.391. Negotiated rulemaking does
not guarantee success. If, for any reason, the Coast Guard is unable to
convene a negotiated rulemaking committee, or if the committee is
unable to reach a consensus on the content of a proposed rule, the
Coast Guard will taken action to publish a Notice of Proposed
Rulemaking (NPRM) to initiate a traditional notice and comment
rulemaking. The Coast Guard's goal is to publish a NPRM in July and a
final rule by September 14, 1995.
Regulatory Negotiation
In 1990, Congress passed the Negotiated Rulemaking Act of 1990
(Pub. L. 101-648) (Reg-Neg Act) to establish a framework under which
federal agencies could conduct negotiated rulemaking. Negotiated
rulemaking is an adjunct to, and not a substitute for, the traditional
notice and comment procedure described in the Administrative Procedure
Act (5 U.S.C. 551 et seq.) for developing regulations. The Reg-Neg Act
encourages federal agencies to consider bringing together
representatives of all affected interests to resolve issues through
negotiation. Negotiated rulemaking allows participants to focus less on
individual positions and enables them to cooperate to develop a
regulation that best incorporates all interests.
The Coast Guard and other administrations in the Department of
Transportation has used negotiated rulemaking successfully. These prior
experiences demonstrate that interested parties working together indeed
are able [[Page 18062]] to identify major issues, gauge the importance
of issues to interested parties, identify information and data
important to resolving issues, and develop a proposal that is
acceptable to all affected interests. Consequently, this approach
results in practical regulations that accommodate the needs of all
affected parties to the extent practicable.
One of the recommendations of The National Performance Review (REG
03) was that federal agencies should use negotiated rulemaking more
frequently. In a March 4, 1995 memorandum, President Clinton directed
the heads of executive agencies to use negotiated rulemaking as one of
the important tools for streamlining and improving the regulatory
process.
Procedures and Guidelines
Subject to appropriate changes which may be made either as a result
of comments received in response to this notice or during the
negotiation process, the following proposed procedures and guidelines
will apply to the negotiated rulemaking discussed in this notice. The
Coast Guard is taking the necessary preliminary steps to charter a
negotiated rulemaking committee and secure the services of a
facilitator, the neutral party who would chair the committee and assist
the negotiating process.
1. Notice of Intent to Establish a Negotiated Rulemaking Committee and
Request for Comment
When an agency of the federal government establishes or uses a
group of people in the interest of obtaining advice or recommendations,
it must charter the group as a federal advisory committee in accordance
with the Federal Advisory Committee Act (5 U.S.C. App.) (FACA). Public
notice of formation of an advisory committee is addressed as well by
the Reg-Neg Act. This Federal Register notice indicates the Coast
Guard's intent to charter the Chicago Drawbridge Negotiated Rulemaking
Committee (committee) and--
a. Identifies the issues involved in the rulemaking;
b. Identifies the affected interests;
c. Solicits public comment on the use of regulatory negotiation for
the rulemaking and on the identified issues, parties, and guidelines.
2. Issue for Negotiation
The committee would attempt to reach consensus on amendments to 33
CFR 117.391, the regulation governing the opening of City of Chicago-
owned bridges over the Chicago River, as it applies to recreational
vessels.
3. Participants
The number of participants in the committee would not exceed 12 to
ensure effective communications and consensus building. The Coast Guard
is making inquiries among identified interests to determine if it is
possible to agree on representatives of those interests and on the
scope of the issues to be addressed. The Coast Guard believes that
negotiation has the best prospects for successful resolution of the
issues.
One purpose of this notice is to assist the Coast Guard in
determining whether there are other interests that may be affected
substantially by the negotiations but would not be represented by the
affected interests listed later in the notice. It is not necessary for
each potentially affected individual or organization to have its own
representative. Rather each interest should be represented adequately
by the selected parties, and the committee should be balanced fairly.
Individuals and organizations who are not members of the committee may
attend the negotiating sessions and confer with committee members.
4. Requests for Representation
Persons or organizations who believe they would be impacted
significantly by any proposed amendment to 33 CFR 117.391 and who
believe their interests would not be represented adequately by any of
the potential participants specified later in this notice may apply
for, or nominate another person for, membership on the committee. The
application or nomination must include: (1) the name of the applicant
or nominee and a brief description of the interest the person
represents; (2) evidence that the applicant or nominee is authorized to
represent parties related to the interest the person proposes to
represent; (3) a written commitment that the applicant or nominee would
participate in good faith; and (4) the reason that the interests
specified in this notice do not represent adequately the interests of
the applicant or nominee. Such applications should be submitted to the
contact person at the address provided at the beginning of the notice
by the deadline indicated.
If other persons or interests request membership in the
negotiations, the Coast Guard will determine whether those interest
would be affected substantially and whether they would be represented
adequately by an identified interest. After reviewing the comments, the
Coast Guard will issue a notice announcing the establishment of the
committee, unless it determines that regulatory negotiation is not
practicable. Negotiations will begin soon after a committee is
chartered and a notice is published in the Federal Register.
5. Good Faith
Participants must be willing to negotiate in good faith. In this
regard, it is important that each interest group, including the Coast
Guard, designate senior personnel to represent its members. The Coast
Guard expects the representatives to inform their respective interest
groups of the progress of the negotiations during the process. If the
negotiations are to be successful, the interest groups should be
willing to accept the product of the committee.
6. Facilitator
The Coast Guard will use a neutral facilitator to conduct the
negotiations in an efficient manner. The facilitator is not involved
with the substantive development of enforcement of the regulation. The
facilitator serves as chair of the committee and may confer with and
offer suggestions to the other members on reaching consensus. This
person also may request the parties to present additional material or
to reconsider their positions. As a neutral party, a facilitator is
able to make objective decisions about negotiating particular issues
and identifying particular interests.
7. Administrative Support and Meetings
The Ninth Coast Guard District would provide support services to
the committee for conducting its meetings and drafting its proposal.
The meetings of the committee would take place in Chicago. If
regulatory negotiation is chosen, it is the Coast Guard's goal to
convene the committee on or about June 5, 1995 for an information,
orientation, and administrative procedure session. Negotiation would
commence on or about June 12, 1995 after the majority of the Spring
breakout season has passed. Negotiations would continue on a weekly
basis, with the committee meeting perhaps daily at some times, in order
to reach consensus by July 7, 1995. A short schedule for the committee
is essential if the Coast Guard is to meet its goal of publishing a
NPRM in July and a final rule by September 14, 1995 in order for new
regulations to be effective for the Fall return of vessels to the
boatyards. The date and location of the first meeting would be
announced in the Federal Register. Because of the anticipated
compressed schedule of meetings, the Coast Guard would develop a
procedure, such as a call-in number or [[Page 18063]] electronic
bulletin board, to provide up-to-date information on scheduled
meetings.
It is anticipated that following the close of the public comment
period, the committee would meet briefly to consider the comments
received and prepare its final report on any desired modifications in
the final rule.
8. Consensus
The goal of the negotiating process is consensus. Generally,
consensus means that each interest should concur in the result. The
facilitator would mediate the negotiation process.
9. Record of Meetings
In accordance with the FACA requirements, the Coast Guard would
keep a record of all committee meetings. The minutes would be placed in
the public docket for the rulemaking (CGD09-95-004). Committee meetings
would be open to the public, subject to space availability.
10. Committee Protocols
Under the general guidance of the facilitator, and subject to
applicable legal requirements, the committee would establish protocols
for its meetings.
11. Agency Action on Committee Proposal
The Commander, Ninth Coast Guard District would publish any
proposal on which the committee reaches consensus as a NPRM, providing
the proposal is consistent with the Coast Guard's statutory authority
and Executive Order 12866. If the committee's proposal is modified in
any manner, the NPRM would identify the modifications so that the
public could distinguish the modifications from the committee's
proposal. If the committee does not reach consensus, it shall report on
those areas on which agreement was reached.
12. Final Committee Report
The committee will be furnished copies of any comments received on
the NPRM and will have an opportunity to meet and consider
modifications to its recommendations based on those comments. If
consensus can be reached, the committee's final report would recommend
a final rule. Commander, Ninth Coast Guard District would then issue
the rule amending 33 CFR 117.391, providing it is consistent with Coast
Guard authority and Executive Order 12866.
13. Termination
The committee would terminate on the date indicated in its charter
(September 30, 1995) or when it submits its final report to the Coast
Guard, whichever is earlier.
14. Failure of the Committee to Reach Consensus
In the event that the committee is unable to reach consensus, the
Coast Guard will develop a NPRM or final rule, as appropriate, and
publish it in the Federal Register. As stated previously, the Coast
Guard's goal is to publish a NPRM in July and a final rule by September
14, 1995.
Potential Participants
The committee members should have expertise in the issues under
negotiation and should be able to represent adequately their affected
interests. The Coast Guard has identified the following as interests
affected by the rulemaking: the City of Chicago; boatyards; boaters;
and the U.S. Coast Guard. In addition, Chicago business groups and
public interest organizations have expressed concern over the operation
of the Chicago River bridges. The Coast Guard has initiated discussions
with representatives of potential members of the committee, and will
continue those overtures, to explain the Reg-Neg process and to
determine the likelihood of being able to convene a successful Reg-Neg
committee. The Coast Guard is pleased that officials of the City of
Chicago have indicated their willingness to participate.
Formation of the committee will allow representatives of all
affected interests to participate directly in the rulemaking process.
The Coast Guard welcomes comment on the appropriateness of these
interests for participation in the negotiation. Suggestions for other
potential participants are encouraged, but it is not necessary for
every concerned organization to be represented, providing that all
affected interests are represented adequately. Further, negotiating
sessions will be open to the public who may communicate with committee
members. The Coast Guard will ensure that the committee is balanced
with respect to the interests represented.
Dated: April 5, 1995.
Rudy K. Peschel,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 95-8759 Filed 4-6-95; 8:45 am]
BILLING CODE 4910-14-M
