[Federal Register Volume 76, Number 116 (Thursday, June 16, 2011)]
[Rules and Regulations]
[Pages 35106-35110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14925]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2011-0228]
RIN 1625-AA00
Safety Zone, Brandon Road Lock and Dam to Lake Michigan Including
Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, and
Calumet-Saganashkee Channel, Chicago, IL
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
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SUMMARY: The Coast Guard is establishing a permanent safety zone from
Brandon Road Lock and Dam to Lake Michigan. This safety zone will cover
77 miles of navigable waterways in the Chicago area and is intended to
restrict vessels from entering certain segments of the navigable waters
of the Des Plaines River, the Chicago Sanitary and Ship Canal, branches
of the Chicago River, and the Calumet-Saganashkee Channel. This safety
zone is necessary to protect the waters, waterway users and vessels
from hazards associated with a myriad of actions designed to control
the spread of aquatic nuisance species. Because the Asian Carp Regional
Coordinating Committee (ACRCC) may take such actions at any time and in
any segment of the waterways covered by this safety zone, this safety
zone will provide the Captain of the Port, Sector Lake Michigan, the
ability to take targeted and expeditious action to protect vessels and
persons from the hazards associated with any Federal and state efforts
to control aquatic nuisance species.
DATES: This rule is effective July 18, 2011.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket,
are part of docket USCG-2011-0228 and are available online at http://www.regulations.gov. This material is also available for inspection or
copying at two locations: The Docket Management Facility (M-30), U.S.
Department of Transportation, West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays and the U.S. Coast
Guard Sector Lake Michigan, 2420 South Lincoln Memorial Drive,
Milwaukee, WI 53207, between 8 a.m.
[[Page 35107]]
and 3 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call BM1 Adam Kraft, Prevention Department, Coast Guard Sector Lake
Michigan, Milwaukee, WI at (414) 747-7148 or e-mail him at
[email protected]. If you have questions on viewing or submitting
material to the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On April 27, 2011, we published a Notice of Proposed Rule Making
(NPRM) entitled Safety Zones; Brandon Road Lock and Dam to Lake
Michigan including Des Plaines River, Chicago Sanitary and Ship Canal,
Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in the
Federal Register (76 FR 23524). We received zero letters commenting on
the proposed rule. No public meeting was requested, and none was held.
Background and Purpose
In 2007, the Department of the Interior through the Fish and
Wildlife Service listed the Asian Carp and the Silver Carp as Injurious
Wildlife Species. Based upon testing conducted by the United States
Army Corps of Engineers (USACE), the Asian carp are believed to be
migrating toward the Great Lakes through the Chicago Sanitary and Ship
Canal and connected tributaries. Scientists are concerned that if these
aquatic nuisance species reach the Great Lakes in sufficient numbers
that they might devastate the Great Lakes commercial and sport fishing
industries.
The Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990, as amended by the National Invasive Species Act of 1996,
authorized the USACE to conduct a demonstration project to identify an
environmentally sound method for preventing and reducing the dispersal
of non-indigenous aquatic nuisance species through the Chicago Sanitary
and Ship Canal.
Subsequently, the USACE put in place an electric barrier to prevent
and reduce the dispersal of Asian carp in the Chicago Sanitary and Ship
Canal. Specifically, a demonstration dispersal barrier (Barrier I) was
constructed and has been in operation since April 2002. It is located
approximately 30 miles from Lake Michigan and creates an electric field
in the water by pulsing low voltage DC current through steel cables
secured to the bottom of the canal. A second barrier (Barrier IIA) was
constructed 800 to 1300 feet downstream of Barrier I. Barrier IIA is
currently operating at two volts per inch, 15 Hertz, and 6.5ms.
Construction on Barrier IIB was completed in early 2011. Operational
and safety testing was conducted on Barrier IIB in February 2011 and is
being analyzed. The completion of Barrier IIB should allow for
maintenance operations with reduced need for the use of other aquatic
nuisance species countermeasures.
In addition to the aforementioned electric dispersal barriers, the
ACRCC has been conducting fish sampling in the Chicago Area Waterway
System. The purpose of this sampling is to detect the potential
presence of Asian Carp and other aquatic nuisance species within the
waters covered by this safety zone. Upon detection of the presence of
Asian Carp or other aquatic nuisance species within any segment of the
waterways covered by this safety zone, the ACRCC will take action
designed to control the spread of aquatic nuisance species within the
area of detection. The various types of actions that the ACRCC might
take are outlined in the Asian Carp Control Strategy Framework, which
can be found on the ACRCC's Web site: http://asiancarp.org.
Because of the ACRCC's testing and countermeasure activity, the
Captain of the Port, Sector Lake Michigan, put in place a Temporary
Interim Rule (TIR) on May 1, 2010. This TIR established a 77 mile long
safety zone from Brandon Road Lock to Lake Michigan in Chicago, IL. The
purpose of that safety zone was to provide the Captain of the Port,
Sector Lake Michigan, with the ability to take targeted and expeditious
action to protect vessels and persons from the hazards associated with
the aquatic nuisance testing and the countermeasure activities detailed
in the ACRCC's Asian Carp Control Strategy Framework. Although that TIR
expired on March 1, 2011, the ACRCC will continue their testing and
countermeasure activities. Thus, the Captain of the Port, Sector Lake
Michigan, still finds it necessary to have the ability to take targeted
and expeditious actions in the affected waterways to protect vessels
and persons from the ACRCC's expected actions. For this reason, the
Captain of the Port, Sector Lake Michigan, is establishing a permanent
safety zone along the same waterways covered in the previously
published TIR. Like the safety zone established in the TIR, this safety
zone will only be enforced when testing and countermeasure activity
require the Captain of the Port, Sector Lake Michigan to enforce the
safety zone.
Discussion of Comments and Changes
No comments on the proposed rulemaking were received and no changes
are being made to the rule.
Regulatory Analysis
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.
Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
We expect the economic impact of this rule to be minimal. This
determination is based on the following: (1) While this rule
establishes a safety zone that is 77 miles long, the Captain of the
Port, Sector Lake Michigan, will enforce the safety zone only in
relatively small segments. The Captain of the Port, Sector Lake
Michigan, will have the flexibility to enforce the safety zone in only
the segments of the safety zone affected by the application of
piscicide, targeted fishing operations or other countermeasures to
address the problem of aquatic nuisance species invasion; and (2) The
Captain of the Port, Sector Lake Michigan, will make every effort to
reduce the closure time of the enforced segments of the safety zone.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. 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 rule will
not have a significant economic impact on a substantial number of small
entities.
This rule will affect the following entities, some of which might
be small entities: The owners and operators of vessels intending to
transit or anchor in any enforced segment of the 77 mile
[[Page 35108]]
safety zone. This rule will not have a significant impact on a
substantial number of small entities because only small segments of the
safety zone will be enforced at any one time. Also, enforcement periods
will be relatively short. Furthermore, in certain instances vessels may
pass around an enforced segment of the zone. Finally, transit through
an enforced segment of the zone may be permitted by the Captain of the
Port, Sector Lake Michigan, or his or her on-scene representative when
deemed practical.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
Assistance for Small Entities
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 so that they can better evaluate
its effects on them and participate in the rulemaking process.
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).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
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 would not result
in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
Taking of Private Property
This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
Indian Tribal Governments
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.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the Office of Information and
Regulatory Affairs
[[Page 35109]]
has not designated it as a significant energy action. Therefore, it
does not require a Statement of Energy Effects under Executive Order
13211.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
Technical Standards
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.
On April 27, 2011, the Coast Guard published a Notice of Proposed
Rule Making (NPRM) entitled Safety Zones; Brandon Road Lock and Dam to
Lake Michigan including Des Plaines River, Chicago Sanitary and Ship
Canal, Chicago River, and Calumet-Saganashkee Channel, Chicago, IL, in
the Federal Register (76 FR 23524). The Coast Guard received zero
public submissions commenting on the impact to small entities by this
rule. There have been no changes made to the rule as proposed.
Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
that this action is one of the category of actions which do not
individually or cumulatively have significant effect on the human
environment. Therefore, this rule is categorically excluded, under
section 2.B.2 Figure 2-1, paragraph (34)(g), of the Instruction and
neither an environmental assessment nor an environmental impact
statement is required. This rule involves the establishing of a safety
zone. An environmental analysis checklist and a categorical exclusion
determination are available in the docket where indicated under
ADDRESSES. The Coast Guard's responsibilities to assess environmental
impacts extend only to the creation of the safety zone and do not
include the application of piscicide or any other countermeasures to
combat invasive species.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165 as follows:
PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS
0
1. The authority citation for part 165 continues to read as follows:
Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701; 50 U.S.C.
191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295,
116 Stat. 2064; Department of Homeland Security Delegation No.
0170.1.
0
2. Add Sec. 165.930 to read as follows:
Sec. 165.930 Safety Zone, Brandon Road Lock and Dam to Lake Michigan
including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago
River, and Calumet-Saganashkee Channel, Chicago, IL.
(a) Location. The safety zone consists of the following areas:
(1) Des Plaines River. All U.S. waters of the Des Plaines River
located between mile marker 286.0 (Brandon Road Lock and Dam) and mile
marker 290.0 (point at which the Des Plaines River connects with the
Chicago Sanitary and Ship Canal).
(2) Chicago Sanitary and Ship Canal. All U.S. waters of the Chicago
Sanitary and Ship Canal between mile marker 290.0 (point at which the
Chicago Sanitary and Ship Canal connects to the Des Plaines River) and
mile marker 321.8 (point at which the Chicago Sanitary and Ship Canal
Connects to the South Branch Chicago River).
(3) South Branch Chicago River. All U.S. waters of the South Branch
Chicago River between mile marker 321.8 (point at which the South
Branch Chicago River connects to the Chicago Sanitary and Ship Canal)
and mile marker 325.6 (point at which the South Branch Chicago River
connects to the Chicago River (Main Branch) and North Branch Chicago
River).
(4) Chicago River (Main Branch). All U.S. waters of the Chicago
River (Main Branch) between mile marker 325.6 (point at which the
Chicago River connects to the South Branch Chicago River) and 100 yards
extending past the end of the Chicago River covering the area of the
Federal channel within Chicago Harbor.
(5) North Branch Chicago River. All U.S. waters of the North Branch
Chicago River between mile marker 325.6 (point at which the North
Branch Chicago River connects to the Chicago River (Main Branch) and
the South Branch Chicago River) and mile marker 331.4 (end of
navigation channel).
(6) Calumet-Saganashkee Channel. All U.S. waters of the Calumet-
Saganashkee Channel between mile marker 303.5 (point at which the
Calumet-Saganashkee Channel connects to the Chicago Sanitary and Ship
Canal) and mile marker 333.0; all U.S. waters of the Calumet-
Saganashkee Channel between mile marker 333.0 and Lake Michigan
(Calumet Harbor).
(b) Effective Period. This rule is effective July 18, 2011.
(c) Enforcement. (1) The Captain of the Port, Sector Lake Michigan,
may enforce this safety zone in whole, in segments, or by any
combination of segments. The Captain of the Port, Sector Lake Michigan,
may suspend the enforcement of any segment of this safety zone for
which notice of enforcement had been given.
(2) The safety zone established by this section will be enforced,
pursuant to paragraph (c)(1) of this section, only upon notice by the
Captain of the Port, Sector Lake Michigan. Suspension of any previously
announced period of enforcement will also be provided by the Captain of
the Port, Sector Lake Michigan. All notices of enforcement and notices
of suspension of enforcement will clearly describe any segments of the
safety zone affected by the notice. At a minimum, notices of
enforcement and notices of suspension of enforcement will identify any
affected segments by reference to mile markers. When possible, the
Captain of the Port, Sector Lake Michigan, will also identify enforced
segments of this safety zone by referencing readily identifiable
geographical points. In addition to providing the geographical bounds
of any enforced segment of this safety zone, notices of enforcement
will also provide the date(s) and time(s) at which enforcement will
commence or suspend.
[[Page 35110]]
(3) The Captain of the Port, Sector Lake Michigan, will publish
notices of enforcement and notices of suspension of enforcement in
accordance with 33 CFR 165.7(a) and in a manner that provides as much
notice to the public as possible. The primary method of notification
will be through publication in the Federal Register. The Captain of the
Port, Sector Lake Michigan, will also provide notice through other
means, such as Broadcast Notice to Mariners, local Notice to Mariners,
local news media, distribution in leaflet form, and on-scene oral
notice. Additionally, the Captain of the Port, Sector Lake Michigan,
may notify representatives from the maritime industry through
telephonic and email notifications.
(d) Regulations. (1) In accordance with the general regulations in
Sec. 165.23 of this part, entry into, transiting, mooring, laying up,
or anchoring within any enforced segment of the safety zone is
prohibited unless authorized by the Captain of the Port, Sector Lake
Michigan, or his or her designated representative.
(2) The ``designated representative'' of the Captain of the Port,
Sector Lake Michigan, is any Coast Guard commissioned, warrant or petty
officer who has been designated by the Captain of the Port, Sector Lake
Michigan, to act on his or her behalf. The designated representative of
the Captain of the Port, Sector Lake Michigan, will be aboard a Coast
Guard, Coast Guard Auxiliary, or other designated vessel or will be on
shore and will communicate with vessels via VHF radio, loudhailer, or
by phone. The Captain of the Port, Sector Lake Michigan, or his or her
designated representative may be contacted via VHF radio Channel 16 or
the Coast Guard Sector Lake Michigan Command Center at 414-747-7182.
(3) To obtain permission to enter or operate within an enforced
segment of the safety zone established by this section, Vessel
operators must contact the Captain of the Port, Sector Lake Michigan,
or his or her designated representative. Vessel operators given
permission to operate in an enforced segment of the safety zone must
comply with all directions given to them by the Captain of the Port,
Sector Lake Michigan, or his or her designated representative.
(4) When a segment of the safety zone is being enforced, it will be
closed to all vessel traffic, except as may be permitted by the Captain
of the Port, Sector Lake Michigan, or his or her designated
representative. As soon as operations permit, the Captain of the Port,
Sector Lake Michigan, will issue a notice of suspension of enforcement
as specified in paragraph (c) of this section.
(5) All persons entering any enforced segment of the safety zone
established in this section are advised that they do so at their own
risk.
Dated: June 3, 2011.
L. Barndt,
Captain, U.S. Coast Guard Captain of the Port, U.S. Coast Guard Sector
Lake Michigan.
[FR Doc. 2011-14925 Filed 6-15-11; 8:45 am]
BILLING CODE 9110-04-P