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    On September 26, 1994, the Coast Guard's action was rescinded by 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