[Federal Register Volume 77, Number 34 (Tuesday, February 21, 2012)]
[Rules and Regulations]
[Pages 9847-9850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3866]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0067]
RIN 1625-AA00


Safety Zone; Kinnickinnic River Containment and Cleanup; 
Milwaukee, WI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
Kinnickinnic River in Milwaukee, Wisconsin. This zone is intended to 
restrict vessels from a portion of the Kinnickinnic River due to the 
petroleum cleanup efforts. This temporary safety zone is necessary to 
protect the surrounding public and vessels from the hazards associated 
with the removal of petroleum product from this area of the 
Kinnickinnic River.

[[Page 9848]]


DATES: This rule is effective in the CFR on February 21, 2012. This 
rule is effective with actual notice for purposes of enforcement at 7 
a.m. on January 30, 2012. This rule will remain in effect through 7 
a.m. on March 1, 2012.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2012-0067 and are available online 
by going to www.regulations.gov, inserting USCG-2012-0067 in the 
``Keyword'' box, and then clicking ``search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, contact or email BM1 Adam Kraft, U.S. Coast Guard 
Sector Lake Michigan, at 414-747-7148 or <a href="/cdn-cgi/l/email-protection#571633363a7913791c253631231722243430793a3e3b"><span class="__cf_email__" data-cfemail="acedc8cdc182e882e7decdcad8ecd9dfcfcb82c1c5c0">[email protected]</span></a>. If you 
have questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when an agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under U.S.C. 553 (b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule because the dangers presented by the 
containment and cleanup of petroleum product are immediate and do not 
allow time for a notice and comment period. Thus, waiting for a notice 
and comment period to run would be impracticable and contrary to the 
public interest in that it would prevent the Coast Guard from 
protecting the public and vessels on navigable waters from the 
aforementioned hazards.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists for making this rule effective less than 30 days after 
publication in the Federal Register. For the reasons discussed in the 
preceding paragraph, a 30-day notice period would be impracticable and 
contrary to the public interest.

Background and Purpose

    On January 23, 2012 it was discovered that a large amount of jet 
fuel is entering the Kinnickinnic River from an underground fuel leak 
in the vicinity of the airport in Milwaukee, WI. The Captain of the 
Port, Sector Lake Michigan, has determined that the containment and 
cleanup poses a serious risk of injury to persons and property within 
this area of the river.

Discussion of Rule

    Because of the aforesaid hazards, the Captain of the Port, Sector 
Lake Michigan, has determined that a safety zone is necessary to 
protect the public. The safety zone will encompass all U.S. navigable 
waters of Kinnickinnic River between the West Becher Street Bridge 
located at 43[deg]00[min]37[sec] N 087[deg]54[min]51[sec] W and the 
First street bridge located at 43[deg]00[min]30[sec] N 
087[deg]54[min]41[sec] W (NAD 83). This rule will be enforced from 7 
a.m. on January 30, 2012 until 7 a.m. on March 1, 2012.
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port, Sector Lake Michigan, or his or her 
designated representative. Entry into, transiting, or anchoring within 
the safety zone is prohibited unless authorized by the Captain of the 
Port, Sector Lake Michigan, or his or her designated representative. 
The Captain of the Port, Sector Lake Michigan, or his or her designated 
representative may be contacted via VHF Channel 16.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    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 conclude that this rule is not a significant 
regulatory action because we anticipate that it will have minimal 
impact on the economy, will not interfere with other agencies, will not 
adversely alter the budget of any grant or loan recipients, and will 
not raise any novel legal or policy issues. The safety zone will be in 
effect along a portion of the river, given the time of year that has 
minimal traffic. Moreover, the most prominent marine commercial company 
in the area has been notified of the situation and it has chosen to use 
an alternate mooring.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will 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.
    This rule will affect the following entities, some of which might 
be small entities: The owners or operators of vessels intending to 
transit or anchor on a portion of Kinnickinnic River between 7 a.m. on 
January 30, 2012 and 7 a.m. on March 1, 2012.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: Vessel 
traffic will be minimal due to the time of year and the location of the 
safety zone.
    In the event that this temporary safety zone affects shipping, 
commercial vessels may request permission from the Captain of The Port, 
Sector Lake Michigan, or his or her designated representative to 
transit through the safety zone. The Coast Guard will give notice to 
the public via a Broadcast to Mariners that the regulation is in 
effect.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking process. 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

[[Page 9849]]

employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The 
Coast Guard will not retaliate against small entities that question or 
complain about this rule or any policy or action of the Coast Guard.

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 expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not affect 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 does not concern an 
environmental risk to health or risk to safety that may 
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.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule involves the establishment of a 
safety zone and is therefore categorically excluded under paragraph 
34(g) of the Instruction.
    A final environmental analysis checklist and categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 
33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority:  33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 
50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T09-0067 to read as follows:


Sec.  165.T09-0067  Safety Zone; Kinnickinnic River containment and 
cleanup, Milwaukee, Wisconsin.

    (a) Location. All waters of the Kinnickinnic River between the West 
Becher Street Bridge located at 43[deg]00'37'' N 087[deg]54'51'' W and 
the First Street Bridge located at 43[deg]00'30'' N 087[deg]54'41'' W 
(NAD 83).
    (b) Effective and Enforcement Period. This rule is effective and 
will be enforced from 7 a.m. on January 30, 2012 until 7 a.m. on March 
1, 2012. The Captain of the Port, Sector Lake Michigan, or his or her 
designated representative, may suspend the enforcement of this safety 
zone.
    (c) Regulations. (1) In accordance with the general regulations in 
section 165.23 of this part, entry into, transiting, or anchoring 
within this safety zone is prohibited unless authorized by the Captain 
of the Port, Sector Lake Michigan, or his or her designated 
representative.
    (2) This safety zone is closed to all vessel traffic, except as may 
be permitted by the Captain of the Port, Sector Lake Michigan, or his 
or her on-scene representative.
    (3) The ``designated representative'' of the Captain of the Port, 
Sector Lake Michigan, is any Coast Guard commissioned, warrant, or 
petty officer who has been designated by the Captain of the Port, 
Sector Lake Michigan, to act on his or her behalf. The designated 
representative of the Captain of the Port, Sector Lake Michigan, will 
be on land

[[Page 9850]]

in the vicinity of the safety zone and will have constant 
communications with the on-scene safety vessels.
    (4) Vessel operators desiring to enter or operate within the safety 
zone shall contact the Captain of the Port, Sector Lake Michigan, or 
his or her designated representative to obtain permission to do so. The 
Captain of the Port, Sector Lake Michigan, or his or her designated 
representative may be contacted via VHF Channel 16.
    Vessel operators given permission to enter or operate in the safety 
zone must comply with all directions given to them by the Captain of 
the Port, Sector Lake Michigan, or his or her designated 
representative.

    Dated: January 31, 2012.
C. W. Tenney,
Commander, U.S. Coast Guard, Captain of the Port, Sector Lake Michigan, 
Acting.
[FR Doc. 2012-3866 Filed 2-17-12; 8:45 am]
BILLING CODE 9110-04-P


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