Drawbridge Operation Regulations; Chicago River, IL

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On September 26, 1994, the Coast Guard's action was rescinded by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]

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