[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]


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

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.

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

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 Kyle.W.Weitzell@uscg.mil.

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]
BILLING CODE 9110-04-P


