[Federal Register Volume 68, Number 192 (Friday, October 3, 2003)]
[Rules and Regulations]
[Pages 57356-57358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25187]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD09-03-215]
RIN 1625-AA09


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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

SUMMARY: The Coast Guard has revised 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: This rule is effective November 3, 2003.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket [CGD09-03-215] and are 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: 

Regulatory History

    On July 21, 2003, we published a notice of proposed rulemaking 
(NPRM) entitled Drawbridge Operation Regulation; Milwaukee, Menomonee, 
and Kinnickinnic Rivers and South Menomonee and Burnham Canals, 
Milwaukee, WI, in the Federal Register (68 FR 43066). We received no 
letters commenting on the proposed rule. No public meeting was 
requested, and none was held.

[[Page 57357]]

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 the closed position. 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. Burnham 
Canal is a federal waterway. The waterway is reportedly no longer 
actively maintained by the Corps of Engineers. This final rule allows 
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. 
This rule will allow the railroad bridge to remain closed, as it has 
been, and still be in compliance with Coast Guard requirements.
    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 
is removing this section from 33 CFR 117.1093.

Discussion of Comments and Changes

    The Coast Guard did not receive any comments on the NPRM. 
Therefore, no changes were made to the final rule.

Regulatory Evaluation

    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).
    There is no known commercial or recreational use of Burnham Canal. 
No information was received by the Coast Guard to demonstrate impending 
activity on the waterway that would require the drawbridge to be 
operable. However, 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 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.

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.

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 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 would not create an 
environmental risk to health or risk to safety that might 
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. 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 analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors

[[Page 57358]]

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 (32)(e) of the Instruction, from 
further environmental documentation.

List of Subjects in 33 CFR Part 117

    Bridges.

Regulations

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

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
1. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 499; Department of Homeland Security 
Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued 
under the authority of Pub. L. 102-587, 106 Stat. 5039.


0
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: September 22, 2003.
R.F. Silva,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 03-25187 Filed 10-2-03; 8:45 am]
BILLING CODE 4910-15-P