[Federal Register Volume 68, Number 139 (Monday, July 21, 2003)]
[Proposed Rules]
[Pages 43066-43068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-18379]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD09-03-215]
RIN 1625-AA09


Drawbridge Operation Regulations; Milwaukee, Menomonee, and 
Kinnickinnic Rivers and South Menomonee and Burnham Canals, Milwaukee, 
WI

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to revise the drawbridge operating 
regulation for the Canadian Pacific (formerly Chicago, Milwaukee, St. 
Paul & Pacific) railroad bridge over the Burnham Canal in Milwaukee, 
WI, allowing the bridge to remain closed to navigation due to 
infrequent use. This will allow the bridge owners to reduce maintenance 
and operation costs at a location where there is no known need for 
drawbridge openings.

DATES: Comments and related material must reach the Coast Guard on or 
before September 19, 2003.

ADDRESSES: You may mail comments and related material to Commander 
(obr), Ninth Coast Guard District, 1240 E. 9th Street, room 2019, 
Cleveland, Ohio, 44199-2060. Commander (obr), Ninth Coast Guard 
District maintains the public docket for this rulemaking. Comments and 
material received from the public, as well as documents indicated in 
this preamble as being available in the docket, will become part of 
this docket and will be available for inspection or copying at the 
Bridge Administration Branch, Ninth Coast Guard District, between 7 
a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Mr. Scot Striffler, Bridge 
Administration Branch, at the address above or phone (216) 902-6084.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related material. If you do so, please include your name 
and address, identify the docket number for this rulemaking [CGD09-03-
215], indicate the specific section of this document to which each 
comment applies, and give the reason for each comment. Please submit 
all comments and related material in an unbound

[[Page 43067]]

format, no larger than 8\1/2\ by 11 inches, suitable for copying. If 
you would like to know they reached us, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period. We may change this 
proposed rule in view of them.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a meeting by writing to Commander (obr), Ninth Coast Guard 
District, 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.

Background and Purpose

    The Canadian Pacific Railway bridge at mile 1.74 over Burnham Canal 
is a swing type bridge with a vertical clearance of approximately eight 
feet. In accordance with 33 CFR 117.1093, it is currently required to 
open for vessels if at least two-hours advance notice is provided prior 
to passing. Canadian Pacific Railway requested the Coast Guard allow 
the bridge to be maintained in the closed to navigation position since 
there have been no requests from vessels to open the bridge since June 
13, 1997. There are no active marine facilities along the canal, and 
the area in Milwaukee Harbor where the bridge is located is part of a 
city re-development project. The City of Milwaukee Commissioner of 
Public Works and Commissioner of City Development offices have notified 
Canadian Pacific Railway in writing that they support this action.
    Burnham Canal is a federal waterway. The waterway is reportedly no 
longer actively maintained by the Corps of Engineers. This rulemaking 
would allow the bridge to be untended and maintained in the closed to 
navigation position as per 33 CFR 117.39. However, the Coast Guard will 
retain the authority, should conditions make such an action necessary, 
to order the bridge owner to restore the bridge to an operable 
condition within 12 months of notification from Commander, Ninth Coast 
Guard District.
    In addition to the regulation for the railroad bridge, the current 
regulation refers to ``all other bridges across the Burnham Canal''. 
The only other bridge on the canal that falls within the jurisdiction 
of the Coast Guard Bridge Administration Program is the Interstate 94 
bridge at mile 1.79, which is a fixed bridge, and should not be 
referred to in the drawbridge regulations. Therefore, the Coast Guard 
proposes removing this section from 33 CFR 117.1093.

Discussion of Proposed Rule

    This proposed rule will allow the railroad bridge to remain closed, 
as it has been, and still be in compliance with Coast Guard 
requirements. With no requests to open the bridge since 1997, 
accordingly there is arguably no need and no known effects on 
navigation if this bridge is allowed to remain closed. If conditions 
change and commercial navigation resumes on Burnham Canal, the Coast 
Guard will require the railroad to restore the bridge to operation 
within 12 months.
    An additional change that would result from this proposed rule is 
the elimination of a section of a drawbridge regulation that is 
obsolete. In addition to the Canadian Pacific bridge, only the I-94 
bridge crosses Burnham Canal. This is a hi-level fixed bridge that does 
not require drawbridge regulations.

Regulatory Evaluation

    This proposed 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.
    We expect the economic impact of this proposed rule to be so 
minimal that a full Regulatory Evaluation under the regulatory policies 
and procedures of DHS is unnecessary.
    Our preliminary investigation revealed no need for the bridge to be 
operable since 1997, with no vessels desiring an opening of the bridge. 
The owners of the land adjacent to the canal do not currently have 
plans to use the land for marine or commercial purposes. As stated, if 
these conditions were to change, then the bridge would be required to 
be operational again within 12 months of notification from the Coast 
Guard.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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 proposed 
rule would not have a significant economic impact on a substantial 
number of small entities.
    With no requests to open the bridge since 1997, the Coast Guard is 
unaware of any entities that may be affected by this proposed rule. If 
the bridge remains closed, only vessels that require less than eight 
feet vertical clearance may pass, which potentially could affect some 
entities. If this condition changes and there is a future need for 
greater clearances, the Coast Guard will require the bridge to be made 
operational again.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining why you think it qualifies and how and to what 
degree this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we want to assist small 
entities in understanding this proposed rule so that they can better 
evaluate its effects on them and participate in the rulemaking. If the 
rule would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact the Bridge Administration 
Branch, Ninth Coast Guard District, at the address above.

Collection of Information

    This proposed rule would call 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 proposed 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

[[Page 43068]]

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 proposed 
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 proposed rule would 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 proposed 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 proposed rule under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and would not 
create an environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This proposed rule does not have tribal implications under 
Executive Order 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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 proposed 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. It has not been designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Environment

    We have considered the environmental impact of this proposed rule 
and concluded that, under figure 2-1, paragraph (32)(e), of Commandant 
Instruction M16475.lD, this rule is categorically excluded from further 
environmental documentation. This action is categorically excluded 
under paragraph 32(e) as it is for the purpose of revising an operation 
regulation for this drawbridge. A ``Categorical Exclusion 
Determination'' is available in the docket where indicated under 
ADDRESSES.

List of Subjects in 33 CFR Part 117

    Bridges.

Regulations

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

    1. The authority citation for part 117 continues to read as 
follows:

    Authority: 33 U.S.C. 499; Department of Homeland Security 
Delegation No. 0170; 33 CFR 1.05-1(g); section 117.255 also issued 
under the authority of Pub. L. 102-587, 106 Stat. 5039.

    2. In Sec.  117.1093, revise paragraph (f) to read as follows:


Sec.  117.1093  Milwaukee, Menomonee, and Kinnickinnic Rivers and South 
Menomonee and Burnham Canals.

* * * * *
    (f) The draw of the Canadian Pacific Railway bridge, mile 1.74 over 
Burnham Canal, need not be opened for the passage of vessels.

    Dated: June 14, 2003.
R.F. Silva,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 03-18379 Filed 7-18-03; 8:45 am]
BILLING CODE 4910-15-P