Drawbridge Operation Regulation; Milwaukee, Menomonee, and Kinnickinnic Rivers and Burnham Canals, Milwaukee, WI
| Citation | 86 FR 53214 |
| Record Number | 2021-20841 |
| Published date | 27 September 2021 |
| Section | Rules and Regulations |
| Court | Coast Guard |
Federal Register, Volume 86 Issue 184 (Monday, September 27, 2021)
[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]]
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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.
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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
