[Federal Register Volume 86, Number 184 (Monday, September 27, 2021)]
[Rules and Regulations]
[Pages 53214-53217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20841]



[[Page 53214]]

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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG-2019-0824]
RIN 1625-AA09


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

AGENCY: Coast Guard, Department of Homeland Security (DHS).

ACTION: Final rule.

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

SUMMARY: The Coast Guard is altering the operating schedules of the 
bridges over the Milwaukee, Menomonee, and Kinnickinnic Rivers and 
Burnham Canals. The City of Milwaukee requested the regulations to be 
reviewed and updated to allow for a more balanced flow of maritime and 
land based transportation.

DATES: This rule is effective October 27, 2021.

ADDRESSES: To view documents mentioned in this preamble as being 
available in the docket, go to https://www.regulations.gov. Type USCG-
2019-0824 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 email Mr. Lee D. Soule, Bridge Management Specialist, Ninth 
Coast Guard District; telephone 216-902-6085, email 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations

CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
IGLD85 International Great Lakes Datum of 1985
LWD Low Water Datum based on IGLD85
NPRM Notice of proposed rulemaking (Advance, Supplemental)
OMB Office of Management and Budget
PVA Passenger Vessel Association
Sec.  Section
U.S.C. United States Code

II. Background Information and Regulatory History

    On November 26, 2019, we published in the Federal Register (84 FR 
65045) an advanced notice of proposed rulemaking request for comments 
and on March 9, 2020, we published in the Federal Register (85 FR 
13517) notice of temporary deviation from regulations; request for 
comments that allowed the city to test the new schedule and allow 
residents to comment all summer. The comments we received from these 
document led us to publish in the Federal Register (86 FR 20344, April 
19, 2021) a notice of proposed rulemaking. Several comments were 
directed at the operation of the Canadian Pacific Railroad Bridge, mile 
1.05, over the Menomonee River. Most of the comments were complaints 
filed on Coast Guard Delay reports that claims the Canadian Pacific 
Railroad Bridge, mile 1.05, over the Menomonee River, did, on August 6, 
2020, on or about noon that day fail to respond to signals for opening 
and fail to open the bridge within the 2-hour requirement. The tender 
stated the request for advance notice for bridge opening was not passed 
on by the previous drawtender and that priority was given to working on 
a train and not tending to the bridge. This resulted in three large 
vessels stuck between bridges waiting for the railroad bridge to open 
for two hours and forty-five minutes past the arrival time provided by 
the vessels. We received a separate report that the bridge was out of 
service for four days, no report was given to the U.S. Coast Guard 
Command Center and at least one vessel was delayed for four days. We 
received another report that the bridge was unable to open on October 
6, 2020, because the bridge supervisor directed the drawtender to a 
different location for the day and no other operators were available 
until the following day. We received a separate report on the same day 
of October 6, 2020, from a second vessel that was told railroad had 
been attempting to call in another drawtender from 4:30 a.m. to 8:19 
a.m. without success and the bridge would not open for maritime 
traffic. On or about June 13, 2020, three sailing vessels were observed 
waiting at the Canadian Pacific Railroad Bridge at 3:23 p.m. and were 
not provided an opening until after 5:30 p.m.
    The second report was a comment submitted to the regulations.gov 
portal that requested the schedules to return to the original schedules 
citing vessels were using excessive speed to go through the river to 
make the new schedule. The speed limits in the harbor needs to be 
addressed by the agency responsible for posting the speed limits in the 
harbor and the author did not consider the needs of all modes of 
transportation involved with the decision.
    On March 30, 2021, we received a report from a public vessel that 
the drawtender did inform the vessel that requested an opening that a 
new law required the bridge to remain closed if ice was present.
    Separately we discussed with residents who comments on the two hour 
advance notice required by some bridges, a carryover of the original 
1984 regulation that mariners didn't notice before or that was not 
enforced locally.
    Milwaukee Harbor is host to several different vessels and having a 
large recreational or commercial vessel station keeping between two 
bridges could be a danger to other vessels traveling between the 
bridges. The exemption prevents vessels from using excessive speed to 
clear the bridges before the special bridge hours go into effect and 
prevents vessels from endangering others waiting for the bridges to 
open.
    After careful review of the comments received against the 50 ton 
proposed rule we decided that vessels with a documented capacity of 12 
tons or greater could cause significant danger to life and property if 
trapped between two bridges and caused to station keep, especially with 
other vessels nearby.
    We explained this is not an exclusion for documented vessels 12 
tons and larger. This provision is allowing vessels of this size to 
complete their passage in or out of the Milwaukee Harbor. A vessel at 
dock or not yet in the river, would be required to wait.
    Our office did engage with residents verbally over the phone on 
several occasions to answer questions and encouraged them to leave 
comments on the regulations.gov website. Most of these engagements were 
with citizens that did not fully read the previous documents concerning 
the regulation change.

III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 499.
    The Milwaukee River is approximately 104 miles long. Beginning in 
Fond du Lac County the river flows easterly to a low head dam just 
above the Humboldt Avenue Bridge at mile 3.22 in downtown Milwaukee, 
WI. From here the river flows south to Lake Michigan. This southerly 
course of the Milwaukee River divides the lakefront area from the rest 
of the city. The Menomonee River joins the Milwaukee River at Mile 1.01 
with the Kinnickinnic River joining the Milwaukee River at Mile 0.39. 
21 bridges cross the Milwaukee River from mile 0.19 to mile 3.22. In 
the early 20th Century, the Milwaukee River was heavily used to support 
the industries in and around the Great Lakes. Today, the river has been 
redeveloped as a tourist and recreational destination. From its

[[Page 53215]]

confluence with the Milwaukee River the Menomonee River flows west for 
33 miles. The lower three miles of the Menomonee River is passable by 
vessels over 600 feet in length. Seven bridges cross the navigable 
portion of the Menomonee River.
    The South Menomonee Canal and the Burnham Canal were both excavated 
during a waterways improvement project in 1864. Both man-made canals 
are tributaries of the Menomonee River branching just above its mouth. 
The South Menomonee Canal is crossed by two bridges and the Burnham 
Canal is crossed by three bridges.
    The Kinnickinnic River flows north through the southern portion of 
the City of Milwaukee connecting with the Milwaukee River near Lake 
Michigan. Only the lower 2.30 miles of the river have been improved for 
vessel use. Five bridges cross the river with the Lincoln Avenue Bridge 
at the head of navigation. Freighters up to 1,000 feet in length 
transfer cargoes at the confluence of the Kinnickinnic and Milwaukee 
Rivers. Most of the recreational vessels in Milwaukee moor in the lake 
front marinas and only transit the rivers. Boat yards on the Menomonee 
and Kinnickinnic rivers haul out and store most of the recreational 
vessels in the fall and winter months and launch the vessels in the 
spring. This action contributes to a considerable surge in drawbridge 
openings in the fall and spring.
    The following bridges will be included in the rule: The Union 
Pacific Railroad Bridge, mile 0.59, over the Milwaukee River with a 
vertical clearance in the closed position of 7 feet above internet 
Great Lakes Datum of 1985 (IGLD85). The Broadway Street Bridge, mile 
0.79, over the Milwaukee River with a vertical clearance in the closed 
position of 14 feet above IGLD85. The Water Street Bridge, mile 0.94, 
over the Milwaukee River with a vertical clearance in the closed 
position of 14 feet above IGLD85. The St. Paul Avenue Bridge, mile 
1.21, over the Milwaukee River with a vertical clearance in the closed 
position of 14 feet above IGLD85. The Clybourn Street Bridge, mile 
1.28, over the Milwaukee River with a vertical clearance in the closed 
position of 14 feet above IGLD85. Michigan Street Bridge, mile 1.37, 
over the Milwaukee River with a vertical clearance in the closed 
position of 12 feet above IGLD85. The Wisconsin Avenue Bridge, mile 
1.46, over the Milwaukee River with a vertical clearance in the closed 
position of 12 feet above IGLD85. The Wells Street Bridge, mile 1.61, 
over the Milwaukee River with a vertical clearance in the closed 
position of 12 feet above IGLD85. The Kilbourn Avenue Bridge, mile 
1.70, over the Milwaukee River with a vertical clearance in the closed 
position of 14 feet above IGLD85. The State Street Bridge, mile 1.79, 
over the Milwaukee River with a vertical clearance in the closed 
position of 14 feet above IGLD85. The Highland Avenue Pedestrian 
Bridge, mile 1.97, over the Milwaukee River with a vertical clearance 
in the closed position of 12 feet above IGLD85. The Juneau Avenue 
Bridge, mile 2.06, over the Milwaukee River with a vertical clearance 
in the closed position of 14 feet above IGLD85. The Knapp Street/Park 
Freeway Bridge, mile 2.14, over the Milwaukee River with a vertical 
clearance in the closed position of 16 feet above IGLD85. The Cherry 
Street Bridge, mile 2.29, over the Milwaukee River with a vertical 
clearance in the closed position of 14 feet above IGLD85. The Pleasant 
Street Bridge, mile 2.58, over the Milwaukee River with a vertical 
clearance in the closed position of 14 feet above IGLD85. The Canadian 
Pacific Railroad Bridge, mile 1.05, over the Menomonee River with a 
vertical clearance in the closed position of 8 feet above IGLD85. The 
North Plankinton Avenue Bridge, mile 1.08, over the Menomonee River 
with a vertical clearance in the closed position of 14 feet above 
IGLD85. The North Sixth Street Bridge, mile 1.37, over the Menomonee 
River with a vertical clearance in the closed position of 23 feet above 
IGLD85. The Ember Lane Bridge, mile 1.95, over the Menomonee River with 
a vertical clearance in the closed position of 12 feet above IGLD85. 
The Sixteenth Street Bridge, mile 2.14, over the Menomonee River with a 
vertical clearance in the closed position of 35 feet above IGLD85. The 
South Sixth Street Bridge, mile 1.51, over the South Menomonee Canal 
with a vertical clearance in the closed position of 8 feet above 
IGLD85. The Union Pacific Railroad Bridge, mile 1.19, over the 
Kinnickinnic River with a vertical clearance in the closed position of 
8 feet above IGLD85. The Kinnickinnic Avenue Bridge, mile 1.67, over 
the Kinnickinnic River with a vertical clearance in the closed position 
of 8 feet above IGLD85. The Canadian Pacific Railroad Bridge, mile 
1.67, over the Kinnickinnic River with a vertical clearance in the 
closed position of 15 feet above IGLD85. Finally, the South First 
Street Bridge, mile 1.78, over the Kinnickinnic River with a vertical 
clearance in the closed position of 14 feet above IGLD85. These bridges 
currently operate under title 33 of the Code of Federal Regulations (33 
CFR), Sec.  117.1093.

IV. Discussion of Comments, Changes and the Final Rule

    There is a typographical error in the NPRM describing the operation 
of the Sixth Street Bridge as remaining closed by regulation and that 
should have read as the Sixteenth Street Bridge. A typographical error 
referring to the Canadian Pacific Railroad Bridge as the Canadian 
National Railroad Bridge have been corrected in this copy. All other 
comments have been addressed previously.

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 protesters.

A. Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits. 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 (OMB).
    This regulatory action determination is based on the ability that 
vessels can still transit the bridge given advanced notice.

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 operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000. The Coast Guard did not receive any comments from the Small 
Business Administration on this rule. The PVA claimed that this rule 
would have a significant impact on one or more of its members. We 
assisted the PVA and its members to submit documentation to the Local 
Milwaukee office of the Small Business Administration and made 
ourselves available for any questions they may have. They did not have 
any concerns and they did not have any questions for us. The Coast 
Guard certifies under 5 U.S.C. 605(b) that this

[[Page 53216]]

rule will not have a significant economic impact on a substantial 
number of small entities.
    While some owners or operators of vessels intending to transit the 
bridge may be small entities, for the reasons stated in section V.A 
above, this rule will not have a significant economic impact on any 
vessel owner or operator.
    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 Government

    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.
    We did not receive any comments from local Indian tribes during any 
comment periods for this rule.

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. We did not receive any comments.

F. Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01, Rev.1, associated implementing 
instructions, and Environmental Planning Policy COMDTINST 5090.1 
(series) which guide the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The 
Coast Guard has 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 promulgates the operating 
regulations or procedures for drawbridges and is categorically excluded 
from further review, under paragraph L49, of Chapter 3, Table 3-1 of 
the U.S. Coast Guard Environmental Planning Implementation Procedures.
    Neither a Record of Environmental Consideration nor a Memorandum 
for the Record are required for this 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.

List of Subjects in 33 CFR Part 117

    Bridges.

    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; 33 CFR 1.05-1; and Department of 
Homeland Security Delegation No. 0170.1.


0
2. Revise Sec.  117.1093 to read as follows:


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

    (a) The draws of the bridges over the Milwaukee River shall operate 
as follows:
    (1) The draws of the North Broadway Street bridge, mile 0.5, and 
North Water Street bridge, mile 0.6, and Michigan Street bridge, mile 
1.1, shall open on signal; except that, from April 16th through 
November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. 
Monday through Friday, except Federal holidays, the draws need not be 
opened, and from midnight to 7 a.m. Monday through Saturday except 
Federal holidays the bridges will open on signal if a 2-hour advance 
notice is provided.
    (2) The draws of all other bridges across the Milwaukee River shall 
open on signal if at least 2-hours' notice is given except that, from 
April 16th through November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 
p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the 
draws need not be opened.
    (3) The following bridges are remotely operated, are required to 
operate a radiotelephone, and shall open as noted in this section: St. 
Paul Avenue, mile 1.21, Clybourn Street, mile 1.28, Wells Street, mile 
1.61, Kilbourn Street, mile 1.70, State Street, mile 1.79, Highland 
Avenue, mile 1.97, and Knapp Street, mile 2.14.
    (4) No vessel documented 12 tons or greater shall be held between 
any bridge at any time and must be passed as soon as possible.
    (5) From November 2nd through April 15th, all drawbridges over the 
Milwaukee River will open on signal if a 12-hour advance notice is 
provided.
    (b) The draws of bridges across the Menomonee River and South 
Menomonee Canal operate as follows:
    (1) The draw of the North Plankinton Avenue bridge across the 
Menomonee River, mile 1.08, and the Canadian Pacific Railroad bridge, 
mile 1.05, shall open on signal; except that, from April 16th through 
November 1st, from 7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. 
Monday through Friday, except Federal holidays, the draws need not be 
opened, and from midnight to 7 a.m. Monday through Friday except 
Federal

[[Page 53217]]

holidays the bridges will open on signal if a 2-hour advance notice is 
provided.
    (2) The draws of all other bridges across the Menomonee River and 
South Menomonee Canal shall open on signal if at least 2-hours' notice 
is given except that, from April 16th through November 1st, from 7:30 
a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. Monday through Friday, 
except Federal holidays, the draws need not be opened.
    (3) The following bridges are remotely operated, are required to 
operate a radiotelephone, and shall open as noted in this section: 
North Plankinton Avenue, mile 1.08, North Sixth Street, mile 1.37, and 
North Ember Lane, mile 1.95, all over the Menomonee River and South 
Sixth Street, mile 1.51, over the South Menomonee Canal.
    (4) No vessel documented over 12 tons shall be held between any 
bridge at any time and must be passed as soon as possible.
    (5) From November 2nd through April 15th, all drawbridges over the 
Menomonee River and South Menomonee Canal will open on signal if a 12-
hour advance notice is provided.
    (c) The draws of bridges across the Kinnickinnic River operate as 
follows:
    (1) The draw of the Kinnickinnic Avenue bridge, mile 1.5, shall 
open on signal; except that, from April 16th through November 1st, from 
7:30 a.m. to 8:30 a.m. and from 4 p.m. to 5:30 p.m. Monday through 
Friday, except Federal holidays, the draws need not be opened, and from 
midnight to 7 a.m. Monday through Friday, except Federal holidays, the 
bridges will open on signal if a 2-hour advance notice is provided.
    (2) The draws of all other bridges across the Kinnickinnic River 
shall open on signal if at least 2-hours' notice is given except that, 
from April 16th through November 1st, from 7:30 a.m. to 8:30 a.m. and 
from 4 p.m. to 5:30 p.m. Monday through Friday, except Federal 
holidays, the draws need not be opened.
    (3) The following bridges are remotely operated, are required to 
operate a radiotelephone, and shall open as noted in this section: The 
South First Street Bridge, mile 1.78.
    (4) No vessel documented over 12 tons shall be held between any 
bridge at any time and must be passed as soon as possible.
    (5) From November 2nd through April 15th, all drawbridges over the 
Kinnickinnic River will open on signal if a 12-hour advance notice is 
provided.
    (d) The Canadian Pacific Railroad Bridge at Mile 1.74 over the 
Burnham Canal, and the Sixteenth Street Bridge, mile 2.14, over the 
Menomonee River are closed by regulation and do not need to open for 
the passage of vessels.

M.J. Johnston,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2021-20841 Filed 9-24-21; 8:45 am]
BILLING CODE 9110-04-P