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

AGENCY:

Coast Guard, DHS.

ACTION:

Advanced Notice of Proposed Rulemaking request for comments.

SUMMARY:

The Coast Guard is seeking information and comments on a Notice of Proposed Rulemaking with a test schedule for the bridges crossing the Milwaukee, Menomonee, and Kinnickinnic Rivers and South Menomonee 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. The current regulation has been in place for over 30 years and is obsolete.

DATES:

Comments and related materials must reach the Coast Guard on or before: January 27, 2020.

ADDRESSES:

You may submit comments identified by docket number USCG-2019-0824 using Federal eRulemaking Portal at http://www.regulations.gov .

See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this proposed rule, call or email Mr. Lee D. Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone 216-902-6085, email Lee.D.Soule@uscg.mil.

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

OMB Office of Management and Budget

NPRM Notice of Proposed Rulemaking (Advance Supplemental)

§ Section

U.S.C. United States Code

II. Background, Purpose and Legal Basis

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. In total 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 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.

Over the years the flour mills, packing plants, breweries, machine shops, railways, and tanneries have been replaced with parks, a casino, microbreweries, and the Harley-Davidson Museum. The coal powered heat plant near mile 1.61 was converted to natural gas, which eliminated the need for coal to be delivered by barge. At present the only docks receiving vessels are the two cement silos located near mile 1.61.

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 cargos at the confluence of the Kinnickinnic and Milwaukee Rivers.

The Port of Milwaukee won the 2016 Saint Lawrence Seaway Development Pacesetter Award for significantly increasing international tonnage shipped through their port. Salt, cement, aggregate, liquid bulk products, coal, grain, and general cargo goods are shipped through this portion of the port. 2.4 million tons of materials were shipped and received in 2018. The Port of Milwaukee is currently ranked 23rd in tonnage among the Great Lakes harbors and is a designated harbor of refuge for the eastern side of Lake Michigan and can accommodate emergency docking of vessels up to 1,000 feet long. 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.

III. Discussion of Proposed Rule

In response to downtown Milwaukee residents' concerns regarding in a pronounced increase in vehicular traffic in the area, the City of Milwaukee has requested a complete review of the bridge regulations in this area.

Over the years these regulations have been amended considerably. This has had the effect of making them difficult to comprehend to the average person. In addition the cyclic higher water levels over the past 3 years and increased number of passenger vessels in the downtown area have resulted in significantly more bridge openings. Lastly, the conversion of older business building into condominiums have increased the evening vehicle traffic causing major traffic delays when the bridges are lifted. While the Milwaukee River is the primary concern with residents and mariners, this rulemaking proposes changes to the language governing bridges in the entire Milwaukee Harbor area, for the purpose of updating these regulations accurately reflect the current operational needs of these bridges and make them easier to understand by the general public.

Currently, the Canadian Pacific Railroad Bridge at Mile 1.74 over the Burnham Canal and the Sixth Street Bridge at Mile 1.37 over the Menomonee River are closed by regulation and do not need to open for the passage of vessels. The City of Milwaukee has requested that the Sixteenth Street Bridge, mile 2.14, over the Menomonee River remain closed and not open by regulation. No vessels have requested a bridge opening in at least 10 years and the bridge provides a horizontal clearance of 120 feet and a vertical clearance of 35 feet above LWD, allowing most vessels to pass under the bridge without an opening. The Coast Guard is working with the City of Milwaukee to convert the Sixteenth Street Bridge to a fixed structure.

Ice has historically hindered or prevented navigation during the winter months. For the last eight years the Coast Guard has authorized the drawbridges to open on signal with a 12-hour advance notice of arrival for vessels from November 19th to April 16th. After careful review of the drawtender logs provided by the City of Milwaukee, the Coast Guard proposes to allow all bridges to require a 12-hour advance notice for openings from November 1st to April 15th each year.

The City of Milwaukee requested that from 11 p.m. to 7 a.m. daily, the bridges would open on signal with a 2-hour advance notice. During these hours the bridges would not be manned and roving drawtenders would open the bridges for vessels. After reviewing the 2016, 2017, and 2018 drawtender logs it was found that for those hours between April and November of each year an average of 45 vessels requested openings. Of these requests an average of 32 openings were between the hours of 11 p.m. and midnight. From midnight to 7 a.m. there were only 13 vessels that requested openings. Based on the data reviewed we have concluded that, due to a lack of openings from midnight to 7 a.m. daily, the bridges shall open on signal if provided a 2-hour advance notice of arrival, meets the reasonable needs of navigation.

The City of Milwaukee also reported receiving several complaints from residents in the downtown area concerning the noise associated with the waterfront. To improve the quality of downtown living we propose to remove the special sound signals listed in the CFR for each bridge. Mariners would request openings by using the standard sound signal of one prolonged blast followed by one short blast or by agreement on VHF-FM Marine Radio or by telephone. From Midnight to 7 a.m. the bridges would require a 2-hour advance notice of arrival provided by VHF-FM Marine Radio or by telephone thus reducing some of the noise associated with the waterfront.

The City of Milwaukee requests to operate the following bridges remotely: North Plankinton Avenue, mile 1.08, and North Sixth Street, mile 1.37, and North Ember Lane, mile 1.95, all over the Menomonee River. Each remotely operated bridge will have sufficient equipment to operate as if a drawtender is in attendance at the bridge. No drawtender will be responsible for monitoring or operating more than 3 drawbridges at any time. At a minimum each remotely operated drawbridge will have the capabilities to communicate by 2-way public address system, equipment capable of making appropriate sound signals as required, and have adequate camera systems in place to safely operate the bridge.

The current regulation allows for no openings from 7:30 a.m. to 8:30 a.m. and from 4:30 p.m. to 5:30 p.m. for vehicular rush hours. The city has requested to start the evening rush hour at 4 p.m. instead of 4:30 p.m. to help relieve vehicle congestion. The city of Milwaukee provided the following vehicle data provided by the Wisconsin Department of Transportation to support the additional 30 minutes of evening rush hour times. We have averaged the data into this spreadsheet:

Based on the data provided we intend to extend the rush hour times of no lifts to 4 p.m. to 5:30 p.m. Monday through Friday, except Federal Holidays.

Additionally, at the time when the original regulation was being written the stipulating regulation regarding the opening of bridges for public safety vessels had not yet been promulgated. An exception was included for vessels carrying U.S. mail and vessels that carry over 50 passengers for hire. The mail service no longer arrives by vessel. Limiting the exclusion by passenger count excludes other commercial vessels from transiting the river. This exclusion is only for the times the bridges do not need to open during high traffic times. During the test deviation, which is planned for the summer of 2020, the intent is to modify this exception to read: “commercial vessels documented over 50 tons.” This prevents tug and barge, cement boats, and other large commercial vessels from getting trapped between bridges, which creates an especially unsafe condition.

IV. Regulatory Analyses

We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on 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 costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB) and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This Proposed rule is soliciting comments for the test deviation planned for the summer navigation season of 2020. Additional comments are encouraged throughout the test deviation, when that publishes.

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 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. While some owners or operators of vessels intending to transit the bridge may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator. The bridges will open on signal with advance notice. The hours the bridges would be closed to accommodate high number of vehicle crossings is only 1 hour in the morning and 1.5 hours in the evening and supports other small business by eliminating traffic congestion and accessibility to those downtown business.

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.

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 proposed 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, above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

C. 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.).

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 proposed 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 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. If you believe this proposed 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 proposed rule will not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, U.S. Coast Guard Environmental Planning Policy COMDTINST 5090.1 (series) and U.S. Coast Guard Environmental Planning Implementation Procedures (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f). We have made a preliminary determination 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 proposed rule promulgates the operating regulations or procedures for drawbridges. Normally this action 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.

V. Public Participation and Request for Comments

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov . If your material cannot be submitted using http://www.regulations.gov,, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacynotice .

Documents mentioned in this NPRM as being available in this docket and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

List of Subjects in 33 CFR Part 117

• Bridges

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; 33 CFR 1.05-1; DHS Delegation No. 0170.1.

2. Revise § 117.1093 to read as follows: