[Federal Register Volume 74, Number 128 (Tuesday, July 7, 2009)]
[Rules and Regulations]
[Pages 32080-32083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15953]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0399]
RIN 1625-AA00


Safety Zone, Kinnickinnic River Sediment Removal Project, 
Milwaukee, WI

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone on

[[Page 32081]]

the Kinnickinnic River in Milwaukee, WI. This temporary interim rule 
places navigational and operational restrictions on all vessels 
transiting the navigable waters located between the West Becher Street 
Bridge and the South Kinnickinnic Avenue Bridge located in Milwaukee, 
WI.

DATES: This temporary interim rule is effective from June 12, 2009 
until December 31, 2009. Comments and related material must reach the 
Docket Management Facility on or before August 6, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-0399 using any one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov.
    Fax: 202-493-2251.
    Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329.
    To avoid duplication, please use only one of these methods. For 
instructions on submitting comments, see the ``Public Participation and 
Request for Comments''.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary interim rule, call BM2 Adam Kraft, Waterways Management 
Division, Coast Guard Sector Lake Michigan, telephone 414-747-7154. If 
you have questions on viewing the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2009-0399), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you include your name and a mailing 
address, an e-mail address, or a telephone number in the body of your 
document so that we can contact you if we have questions regarding your 
submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2009-0399'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your comments by mail or hand delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change this rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2009-0399 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit the 
Docket Management Facility in Room W12-140 on the ground floor of the 
Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays. We have an agreement with the 
Department of Transportation to use the Docket Management Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Regulatory Information

    The Coast Guard is issuing this temporary interim 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 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 of the 
importance of removing harmful polychlorinated biphenyls from this area 
of water. Also, this project has been opened to the community for 
comment via numerous public meetings, local news, and comment cards 
that were given to the local marinas. No feedback was received. 
Likewise, 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 because of the safety risk to 
commercial and recreational boaters who could possibly transit this 
area. The following discussion and the Background and Purpose section 
below provides additional support of the Coast Guard's determination 
that good causes exists for not publishing a NPRM and for making this 
rule effective less than 30 days after publication.
    The Kinnickinnic Sediment Removal Project is a 22 million dollar 
dredging project that's main purpose is to remove harmful 
polychlorinated biphenyls from the sediment in this area of water. This 
is an Environmental Protection Agency (EPA) sponsored project which has 
joined with the Army Corp of Engineers for coordination and completion. 
This project has been in the planning stages since 2002 and has 
incorporated many local stakeholders into their meetings, including: 
Southwind Marine, Milwaukee Marine, Canadian Pacific Railroad, Ryba 
Marine, United States Coast Guard and the Gillen Company to ensure all 
issues that could arise from a project of this magnitude are addressed. 
They also have involved the public through the use of the local news, 
public comment forums, informational handouts, and public open houses. 
They have received no negative feedback from any of this public 
outreach. The area that is affected by this project does not affect

[[Page 32082]]

any commercial traffic and rarely encounters any type of recreational 
traffic. The area of river where this project is occurring only affects 
one winter storage marina and the owner of that marina has been 
involved in all aspects of this planning.

Background and Purpose

    U.S. Environmental Protection Agency Great Lakes National Program 
Office and state partner Wisconsin Department of Natural Resources are 
heading up the dredging of contaminated sediment from Milwaukee's 
Kinnickinnic River. The $22 million project is being funded under the 
Great Lakes Legacy Act (GLLA). The Act provides federal money that 
along with local matching dollars are used to clean up polluted 
sediment (mud) along the U.S. shores of the Great Lakes. The 
Kinnickinnic River project calls for the removal of about 170,000 cubic 
yards of sediment contaminated with PCBs and PAHs (polychlorinated 
biphenyls and polyaromatic hydrocarbons).

Discussion of Rule

    The proposed safety zone will encompass 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 South Kinnickinnic Avenue 
Bridge located at 43[deg]00'29'' 087[deg]54'30''. (NAD 83). Vessels 
will be permitted to transit the zone with the permission of the 
Captain of the Port Lake Michigan or his on-scene representative. 
Periods during which transit of the zone will be permitted will be 
communicated to the public daily via Broadcast Notice to Mariners. 
These Broadcasts can be heard daily via VHF Channel 16.
    All persons and vessels shall comply with the instructions of the 
Coast Guard Captain of the Port or the on-scene 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 on-scene representative. The Captain of the Port or his on-scene 
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.
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation is unnecessary. This determination is based 
on the following: (1) Commercial vessel traffic is non-existent in this 
area and recreational traffic is very minimal; (2) the public is very 
well informed about this project via local news, public comment forums, 
and public open houses; (3) all local marinas have been involved in 
every aspect of the seven years of planning that have lead up to this 
project; and (4) the safety zone almost always will have daily four 
hour openings for traffic to pass through if needed.

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 would affect the following entities, some of which 
might be small: The owners and operators of vessels intending to 
transit or anchor in a portion of the Kinnickinnic River, Milwaukee, WI 
between 7 a.m. on June 12, 2009 and 11:59 p.m. (local) on December 31, 
2009.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: (1) 
Commercial vessel traffic is non-existent in this area and recreational 
traffic is very minimal; (2) the public is very well informed about 
this project via local news, public comment forums, and public open 
houses; (3) all local marinas have been involved in every aspect of the 
seven years of planning that have lead up to this project; and (4) the 
safety zone almost always will have daily four hour openings for 
traffic to pass through if needed. The Coast Guard will give notice to 
the public, using all appropriate means to inform them when the safety 
zone is enforced and when openings are authorized.

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 can 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 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 an 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

[[Page 32083]]

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 create 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 
that this action is one of the category of actions which do not 
individually or cumulatively have significant effect on the human 
environment. Therefore, this rule is categorically excluded, under 
section 2.B.2 Figure 2-1, paragraph (34)(g), of the Instruction and 
neither an environmental assessment nor an environmental impact 
statement is required. This rule involves the establishing, 
disestablishing, or changing of a safety zone. An environmental 
analysis checklist and a 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.


0
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. 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.

0
2. Add temporary Sec.  165.T09-0399 to read as follows:


Sec.  165.T09-0399  Safety Zone, Kinnickinnic River Sediment Removal 
Project, Milwaukee, WI.

    (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 South Kinnickinnic Avenue Bridge located at 43[deg]00'29'' N, 
087[deg]54'30'' W (NAD 83).
    (b) Enforcement period. This regulation is enforced from 7 a.m. 
local on June 12, 2009 until 11:59 p.m. on December 31, 2009. The 
Captain of the Port, Sector Lake Michigan may terminate this zone at 
any time.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  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 on-scene 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 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 Sector 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 Sector Lake Michigan or his on-scene 
representative.

    Dated: June 12, 2009.
B.C. Jones,
Captain, U.S. Coast Guard, Captain of the Port Sector Lake Michigan.
[FR Doc. E9-15953 Filed 7-6-09; 8:45 am]
BILLING CODE 4910-15-P