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###### Department of Homeland Security

###### Coast Guard 

          - 33 CFR Part 165 
          - [Docket No. USCG-2008-0914] 
          - RIN 1625-AA00 

# AGENCY:

Coast Guard, DHS. 

# ACTION:

Temporary final rule. 

# SUMMARY:

The Coast Guard is establishing a temporary safety zone on the Milwaukee River, Milwaukee, WI. This zone is intended to restrict vessels from a portion of the Milwaukee River during the Milwaukee River Challenge on September 20, 2008. This temporary safety zone will establish restrictions upon, and control the movement of, vessels in a specified area immediately prior to, during, and immediately after the regatta. 

# DATES:

This regulation is effective from 9 a.m. to 5 p.m. on September 20, 2008. 

# ADDRESSES:

                        Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0914 and are available online at                         *www.regulations.gov*. They are also available for inspection or copying at two locations: 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, and U.S. Coast Guard Sector Lake Michigan, 2420 South Lincoln Memorial Drive, Milwaukee, Wisconsin 53207 between 9:30 a.m. and 2 p.m., Monday through Friday, except Federal holidays.                     

# FOR FURTHER INFORMATION CONTACT:

                        MST2 Eric Vogel, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7154. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone (202) 366-9826.                               ( print page 54685)    

# 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 Procedures 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 the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 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 immediate action is necessary to ensure the safety of commercial and recreational vessels in the vicinity of the regatta on the date and times this rule will be in effect and delay would be contrary to the public interest. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the                     **Federal Register**                    . 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**                    . Delaying this rule would be contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property.                 

## Background and Purpose 

This temporary zone is necessary to ensure the safety of vessels and participants from the hazards associated with the operation of rowing race boats in a confined waterway. Based on the potential vessel traffic and the presence of small rowing vessels the Captain of the Port Lake Michigan has determined that racing rowing boats in presence of normal vessel traffic poses a significant risk to public safety and property. The likely combination of rowing vessels operating near large towing vessels and recreational vessels operating at high speeds could result in collisions that may cause serious injuries or fatalities. Establishing a safety zone to control vessel movement in the location of the race course will help ensure the safety of persons and property at this event and help minimize the associated risk. 

## Discussion of Rule 

A temporary safety zone is necessary to ensure safety of life on the navigable waters immediately prior to, during, and immediately after the Milwaukee River Challenge. This proposed rule will establish restrictions upon and control the movement of vessels through a portion of the Milwaukee River immediately prior to, during, and immediately after the Milwaukee River Challenge. 

The Captain of the Port will cause notice of enforcement of the regulation established by this section to be made by all appropriate means to the affected segments of the public. Such means of notification will include, but is not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the regulation is terminated. 

## 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. 

This expectation is based on the minimal time that vessels will be restricted from the zone in an area where the Coast Guard expects insignificant adverse impact to mariners from the zones' activation. 

## Small Entities 

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would 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 may be small entities: The owners and operators of vessels intending to transit or anchor in a portion of Milwaukee River between 9 a.m. to 5 p.m. on September 20, 2008. 

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be in effect for only eight hours on September 20, 2008. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of the Port Lake Michigan 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 offered 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 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 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 would not result in                           ( print page 54686)                        such 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 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 procedure; and related management system 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 5100.1 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 under the Instruction that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. 

                    A final “Environmental Analysis Check List” 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, and 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 

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

Authority:33 U.S.C. 1226, 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. 

2. A new temporary § 165.T09-0914 is added as follows: 

§ 165.T09-0914 

                            (a)                             *Location.*                             The following area is a temporary safety zone: All waters of the Milwaukee River from the junction with the Menomonee River at position 43°01′55′′ N, 087°54′40′′ W to the Humboldt Avenue Bridge at position 43°03′25′′ N, 087°53′53′′ W. All waters of the Menomonee River from the Twenty-fifth St. Bridge at position 43°01′58′′ N, 087°56′41′′ W to the junction with the Milwaukee River. (DATUM: NAD 83).                         

                            (b)                             *Effective period.*                             This regulation is effective from 9 a.m. to 5 p.m. on September 20, 2008.                         

                            (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 Lake Michigan, or his on-scene representative. 

(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or his on-scene representative. 

(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. 

(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or his on-scene representative to obtain permission to do so. The Captain of the Port or his on-scene 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 Lake Michigan or his on-scene representative. 

Dated: August 27, 2008. 

B.C. Jones, 

Captain, U.S. Coast Guard, Captain of the Port Lake Michigan.

[FR Doc. E8-22128 Filed 9-22-08; 8:45 am] 

BILLING CODE 4910-15-P