[Federal Register Volume 82, Number 134 (Friday, July 14, 2017)]
[Rules and Regulations]
[Pages 32469-32472]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14762]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2017-0419]
RIN 1625-AA00


Safety Zone; Milwaukee Air and Water Show, Milwaukee Harbor; 
Milwaukee, Wisconsin

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone within 
Milwaukee Harbor in Milwaukee, Wisconsin. This safety zone is intended 
to restrict vessels from certain portions of Milwaukee Harbor due to an 
air and water show. This temporary safety zone is necessary to protect 
the surrounding public and vessels from the hazards associated with the 
air and water show.

DATES: This rule will be effective from 9:00 a.m. on July 13, 2017 
through 5:00 p.m. on July 16, 2017.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call or

[[Page 32470]]

email Marine Event Coordinator, MST1 Kaleena Carpino, Sector Lake 
Michigan, U.S. Coast Guard; telephone 414-747-7148, email [email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    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 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 an NPRM with respect to this rule 
because doing so would be impracticable and contrary to the public 
interest. The Coast Guard did not receive the final details for this 
event until there was insufficient time remaining before the event to 
publish an NPRM. Specifically, the Coast Guard finalized the details 
regarding location and date for this display on June 6, 2017. Thus, 
delaying the effective date of this rule to wait for a comment period 
to run would be both impracticable and contrary to the public interest 
because it would inhibit the Coast Guard's ability to protect the 
public and vessels from the hazards associated with the Milwaukee Air 
and Water Show from July 13, 2017 through July 16, 2017, which is 
discussed further below.
    We are issuing this final rule, and under 5 U.S.C. 553(d)(3), the 
Coast Guard finds that good cause exists for making this temporary rule 
effective less than 30 days after publication in the Federal Register. 
For the same reasons discussed in the preceding paragraph, waiting for 
a 30 day notice period to run would be impracticable and contrary to 
the public interest.

III. Legal Authority and Need for Rule

    The legal basis for this rule is the Coast Guard's authority to 
establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; 
Department of Homeland Security Delegation No. 0170.1.
    In May of 2017 the Coast Guard confirmed that an extension of the 
safety zone for the Milwaukee Air and Water Show would provide 
increased safety for all participants, spectators and recreational 
waterway users. This extension will address boaters using the North gap 
of the Milwaukee Harbor and prevent them from unknowingly entering an 
unsafe area and the established safety zone from July 13, 2017 through 
July 16, 2017.
    This air and water show is expected to draw a large group of 
waterborne spectators. The Captain of the Port Lake Michigan has 
determined that the likelihood of transiting vessels in the waters over 
which the air and water show participants will operate presents a 
significant risk of serious injuries or fatalities. Such hazards 
include flaming debris from dropped flares, and falling aircraft.

IV. Discussion of the Rule

    With the aforementioned hazards in mind, the Captain of the Port 
Lake Michigan has determined that this temporary safety zone is 
necessary to ensure the safety of persons and vessels during the air 
and water show. This zone is effective from 9 a.m. on July 13, 2017 
through 5 p.m. on July 16, 2017. The safety zone will encompasses all 
waters of Milwaukee Harbor in the vicinity of Lakeshore State Park 
within an area bounded by the following coordinates, beginning at 
43[deg]02.455' N., 087[deg]52.880' W.; then southeast to 43[deg]02.230' 
N., 087[deg]52.061' W.; then northeast to 43[deg]04.451' N., 
087[deg]50.503' W.; then northwest to 43[deg]04.738' N., 
087[deg]51.445' W.; then southwest to 43[deg]02.848' N., 
087[deg]52.772' W.; then returning to the point of origin (NAD 83).
    This rule will be only be enforced from 9:00 a.m. through 5:00 p.m. 
on each day from July 13, 2017 through July 16, 2017.
    The Captain of the Port Lake Michigan will notify the public that 
the zone in this rule is or will be enforced in accordance with 33 CFR 
165.7(a). Such means of notification may also include, but are not 
limited to Broadcast Notice to Mariners or Local Notice to Mariners.
    All persons and vessels shall comply with the instructions of the 
Captain of the Port Lake Michigan or her designated on-scene 
representative. Entry into, transiting, or anchoring within the safety 
zone is prohibited unless authorized by the Captain of the Port Lake 
Michigan or her designated on-scene representative. The Captain of the 
Port Lake Michigan or her designated on-scene representative may be 
contacted at 414-747-7182 or via VHF Channel 16.

V. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes and executive orders, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the cost 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits. 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and 
promoting flexibility. Executive Order 13771 (``Reducing Regulation and 
Controlling Regulatory Costs''), directs agencies to reduce regulation 
and control regulatory costs and provides that ``for every one new 
regulation issued, at least two prior regulations be identified for 
elimination, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process.'' This rule has not 
been designated a ``significant regulatory action,'' under Executive 
Order 12866. Accordingly, it has not been reviewed by the Office of 
Management and Budget.
    As this rule is not a significant regulatory action, this rule is 
exempt from the requirements of Executive Order 13771. See OMB's 
Memorandum titled ``Interim Guidance Implementing Section 2 of the 
Executive Order of January 30, 2017 titled `Reducing Regulation and 
Controlling Regulatory Costs' '' (February 2, 2017).
    This regulatory action determination is based on the size, 
location, duration, and time-of-year of the safety zone. The safety 
zone created by this rule will be relatively small and enforced on an 
as-needed basis. Under certain conditions, vessels may still transit 
through the safety zone when permitted by the Captain of the Port. 
Moreover, the Coast Guard will issue Broadcast Notice to Mariners via 
VHF-FM marine channel 16 about the zone.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and

[[Page 32471]]

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 would 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 within the waters of Milwaukee Harbor in Milwaukee, 
Wisconsin during the times in which the safety zone is enforced in July 
of 2017.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the reasons cited in the 
Regulatory Planning and Review section. Additionally, before the 
enforcement of this zone, we would issue a local Broadcast Notice to 
Mariners so vessel owners and operators can plan accordingly.
    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule. 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 person listed in the FOR FURTHER INFORMATION CONTACT 
section.
    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.

C. 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).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. We have analyzed this rule under that Order and have 
determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in Executive Order 
13132.
    Also, 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. If 
you believe this rule has implications for federalism or Indian tribes, 
please contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section above.

E. 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 (adjusted for 
inflation) 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.

F. 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 (42 U.S.C. 4321-4370f), and have determined that 
this action is one of a category of actions that do not individually or 
cumulatively have a significant effect on the human environment. This 
rule involves the establishment of a safety zone and, therefore, is in 
the Milwaukee Harbor in Milwaukee, Wisconsin. Normally such actions are 
categorically excluded under paragraph 34(g) of Figure 2-1 of the 
Commandant Instruction. A preliminary Record of Environmental 
Consideration (REC) supporting this determination is available in the 
docket where indicated under the ADDRESSES section of this preamble. We 
seek any comments or information that may lead to the discovery of a 
significant environmental impact from this proposed rule.

G. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

H. Taking of Private Property

    This rule will not cause a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

I. 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.

J. 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.

K. Energy Effects

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

L. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

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; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 
6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.

0
2. Add Sec.  165.T09-0419 to read as follows:

[[Page 32472]]

Sec.  165.T09-0419   Safety Zone; Milwaukee Air and Water Show, 
Milwaukee Harbor; Milwaukee, Wisconsin.

    (a) Location. This zone will encompass all navigable waters of 
Milwaukee Harbor in the vicinity of Lakeshore State Park within an area 
bounded by the following coordinates, beginning at 43[deg]02.455' N., 
087[deg]52.880' W.; then southeast to 43[deg]02.230' N., 
087[deg]52.061' W.; then northeast to 43[deg]04.451' N., 
087[deg]50.503' W.; then northwest to 43[deg]04.738' N., 
087[deg]51.445' W.; then southwest to 43[deg]02.848' N., 
087[deg]52.772' W.; then returning to the point of origin.
    (b) Effective period. This rule will be effective from 9:00 a.m. on 
July 13, 2017 through 5:00 p.m. on July 16, 2017. This rule will be 
enforced from 9:00 a.m. through 5:00 p.m. on each day from July 13, 
2017 through July 16, 2017.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23, entry into, transiting, or anchoring in this safety zone 
is prohibited unless authorized by the Captain of the Port Lake 
Michigan or her designated on-scene representative.
    (2) This safety zone is closed to all vessel traffic except as 
permitted by the Captain of the Port Lake Michigan or her designated 
on-scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port Lake 
Michigan is any Coast Guard commissioned, warrant or petty officer who 
has been designated by the Captain of the Port Lake Michigan to act on 
her behalf.
    (4) Vessel operators desiring to enter or operate within the safety 
zone must contact the Captain of the Port Lake Michigan or her on-scene 
representative to obtain permission to do so. The Captain of the Port 
Lake Michigan or her on-scene representative may be contacted at 414-
747-7182 or 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 her on-scene 
representative.

A.B. Cocanour,
Captain, U.S. Coast Guard, Captain of the Port Lake Michigan.
[FR Doc. 2017-14762 Filed 7-13-17; 8:45 am]
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