[Federal Register Volume 85, Number 120 (Monday, June 22, 2020)]
[Rules and Regulations]
[Pages 37337-37339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12494]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 100
[Docket Number USCG-2020-0207]
RIN 1625-AA08
Special Local Regulation; USA Triathlon, Milwaukee Harbor,
Milwaukee, WI
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is establishing a temporary special local
regulation for certain waters of the Milwaukee Harbor. This action is
necessary to provide for the safety of life on these navigable waters
within the Lake Shore State Park Lagoon during a triathlon swim event.
This rulemaking will prohibit persons and vessels from being in the
regulated area unless authorized by the Captain of the Port Lake
Michigan or a designated representative.
DATES: This rule is effective from 8 a.m. on August 7, 2020 through 2
p.m. on August 9, 2020.
ADDRESSES: To view documents mentioned in this preamble as being
available in the docket, go to https://www.regulations.gov, type USCG-
2020-0207 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 Chief Petty Officer Kyle Weitzell, Sector Lake Michigan
Waterways Management Division, 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
On January 10, 2020, USA Triathlon notified the Coast Guard that it
will be hosting a triathlon in Milwaukee, WI from August 7, 2020
through August 9, 2020. Over the course of the three days this
triathlon is being held, there will be as many as 6,000 participants
involved in the swim portion of the triathlon in the Lake Shore State
Park Lagoon within the Milwaukee Harbor. In response, on April 8, 2020,
the Coast Guard published a Notice Of Proposed Rulemaking (NPRM) titled
``Special Local Regulation; USA Triathlon, Milwaukee Harbor, Milwaukee,
WI'' (85 FR 19709). There we stated why we issued the NPRM, and invited
comments on our proposed regulatory action related to this triathlon
swim event. During the comment period that ended May 8, 2020, the Coast
Guard received five comments.
III. Legal Authority and Need for Rule
The Coast Guard is issuing this rule under authority in 46 U.S.C.
70041. The Captain of the Port Lake Michigan (COTP) has determined that
potential hazards associated with the swim portion of the triathlon
from August 7, 2020 through August 9, 2020 will be a safety concern for
anyone within the Lake Shore State Park Lagoon. The purpose of this
rule is to protect safety of persons, vessels, and the navigable waters
in the safety zone before, during, and after the scheduled event.
IV. Discussion of Comments, Changes, and the Rule
As noted above, we received five comments on our NPRM published
April 8, 2020. There are no changes in the regulatory text of this rule
from the proposed rule in the NPRM.
One comment expressed agreement with the proposed rule in that it
is necessary to protect triathlon participants from potential injury.
One comment expressed concern regarding whether it was appropriate
to hold this event during the COVID-19 pandemic, asked whether this
event can take place next year, and asked whether the City of Milwaukee
was aware of the event. In response to this comment, the process of
issuing a special local regulation for this event does not constitute
approval of the event. The Coast Guard is working closely with state
and local governments, health officials, and sponsors of marine events
to determine whether an event can be held safely. At the time this
regulation will be published, we still face uncertainty with regard to
how the COVID-19 pandemic will play out in the months to come. As we
get closer to the event date, there may be the possibility that the
event will be cancelled due to ongoing state or local restrictions put
in place for large gatherings as a result of the COVID-19 pandemic.
That being said, the COTP is continuing to implement these special
local regulations in case this event does occur as scheduled, in order
to protect persons, vessels, and the navigable waters of the United
States. As of the publication of this rule, the COTP is not aware of
any plans from the sponsor of this event to postpone this event until
2021. Additionally, the City of Milwaukee maintains a separate
permitting process, independent from the process employed by the Coast
Guard. The City of Milwaukee is aware of this event and will act in
accordance with their own regulations, policies, and procedures.
Two comments expressed concern for the adequacy of environmental
protection due to this regulation. Both comments expressed concern that
this regulation places priority on the protection of human life, rather
than wildlife, and that a triathlon would disturb wildlife in the event
area. Paragraph IV.F of the NPRM published on April 8, 2020 discusses
the environmental review for this special local regulation, which has
been conducted in accordance with the National Environmental Policy Act
of 1969 (NEPA). Under NEPA, a review of this regulation evaluated the
potential effect on the human environment. NEPA, as codified in 40 CFR
1508.14, clarifies the ``human environment shall be interepreted
comprehensively to include the natural and physical environment and the
relationship of people with that environment.'' As such, the
environmental review conducted for this regulation has taken into
account potential effects on endangered and threatened species,
critical habitats, migratory birds, wildlife refuges and reserves,
essential fish habitats, and coastal management zones, in addition to
historical and
[[Page 37338]]
cultural impacts. Given the action taken by the COTP to limit access to
a small portion of navigable waters of the United States that is
routinely used for recreation, it was determined, as stated in the NPRM
published on April 8, 2020, that actions such as this have been found
to have no significant effect on the environment and are excluded from
further review. Refer to Paragraph V.F of this temporary rule for more
information on environmental review of this regulation.
Finally, one comment was beyond the scope of the proposed
regulation and is not addressed herein.
This rule establishes a special local regulation from 8 a.m. on
August 7, 2020 through 2 p.m. on August 9, 2020. The special local
regulation will cover all navigable waters of the Lake Shore State Park
Lagoon in the Milwaukee Harbor within an area bound by coordinates
43[deg]02.20' N, 087[deg]53.69' W, then South to 43[deg]01.75' N,
087[deg]53.71' W, then Southwest to 43[deg]01.73' N, 087[deg]53.96' W,
then Northeast to 43[deg]02.20' N, 087[deg]53.83' W, then East to point
of origin. The duration of the regulation is intended to protect the
safety of persons, vessels, and these navigable waters before, during,
and after the swim portion of the traithlon. No vessel or person,
except those participating in the event, would be permitted to enter
the regulated area without obtaining permission from the COTP or the
Patrol Commander. The daily schedule of the swim portion of the
triathlon will be made available publicly by Broadcast Notice to
Mariners.
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
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 rule has not been
designated a ``significant regulatory action,'' under Executive Order
12866. Accordingly, this rule 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 regulatory action determination is based on location, size,
and duration of this proposed special local regulation. This regulation
will be in effect only on the Lake Shore State Park Lagoon during the
swim portion of the triathlon from August 7, 2020 through August 9,
2020. Additionally, the COTP may consider the movement of persons and
vessels through or within the regulated, if it is safe to do so.
B. Impact on Small Entities
The Regulatory Flexibility Act of 1980, 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 received no comments from the Small Business
Administration on this rulemaking. 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.
While some owners or operators of vessels intending to transit the
regulated area 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
call or email 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 will not call for a 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.
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
Directive 023-01, Rev. 1, associated implementing instructions, and
Environmental Planning COMDTINST 5090.1 (series), 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 a
special local regulation lasting three days that would prohibit entry
in the Lake Shore State Park Lagoon within the
[[Page 37339]]
Milwaukee Harbor during the swim portion of a triathlon. It is
categorically excluded from further review under paragraph L61 of
Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A
Memorandum for Record supporting this determination is available in the
docket. For instructions on locating the docket, see the ADDRESSES
section of this preamble.
G. Protest Activities
The Coast Guard respects the First Amendment rights of protesters.
Protesters are asked to call or email 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 100
Marine safety, Navigation (water), Reporting and recordkeeping
requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 100 as follows:
PART 100--SAFETY OF LIFE ON NAVIGABLE WATERS
0
1. The authority citation for part 100 continues to read as follows:
Authority: 46 U.S.C. 70041; 33 CFR 1.05-1.
0
2. Add Sec. 100.T09-0207 to read as follows:
Sec. 100.T09-0207 Special Local Regulation; USA Triathlon, Milwaukee
Harbor, Milwaukee, WI.
(a) Regulated area. This area includes all waters of the Lake Shore
State Park Lagoon in the Milwaukee Harbor within an area bound by
coordinates 43[deg]02.20' N, 087[deg]53.69' W, then South to
43[deg]01.75' N, 087[deg]53.71' W, then Southwest to 43[deg]01.73' N,
087[deg]53.96' W, then Northeast to 43[deg]02.20' N, 087[deg]53.83' W,
then East to point of origin.
(b) Special Local Regulations. (1) The regulations in this section,
along with the regulations of Sec. 100.901, apply to this marine
event. No vessel may enter, transit through, or anchor within the
regulated area without the permission of the Captain of the Port Lake
Michigan (COTP) or the Patrol Commander.
(2) Vessel operators desiring to enter or operate within the
regulated area shall contact the COTP or the Patrol Commander on VHF-FM
Channel 16 to obtain permission to do so. Vessel operators given
permission to enter or operate within the regulated area must comply
with all directions given to them by the COTP or the Patrol Commander.
(c) Effective dates. These regulations are in effect from 8 a.m. on
August 7, 2020 through 2 p.m. on August 9, 2020. Public notice of
specific enforcement times will be made available through Broadcast
Notice to Mariners.
Dated: June 4, 2020
T.J. Stuhlreyer,
Captain, U.S. Coast Guard, Captain of the Port Lake Michigan.
[FR Doc. 2020-12494 Filed 6-19-20; 8:45 am]
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