[Federal Register Volume 83, Number 20 (Tuesday, January 30, 2018)]
[Proposed Rules]
[Pages 4171-4175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01745]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2017-1095]
RIN 1625--AA11; 1625-AA00
Regulated Navigation Area, Chicago Sanitary and Ship Canal,
Romeoville, IL
AGENCY: Coast Guard, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard proposes to amend the navigational and
operational restrictions of the Regulated Navigation
[[Page 4172]]
Area (RNA) on the Chicago Sanitary and Ship Canal (CSSC) near
Romeoville, Illinois and remove the redundant Safety Zone currently in
place. The purpose of this amendment is to improve safety and clarify
regulations for vessels transiting the navigable waters located
adjacent to and over the U.S. Army Corps of Engineers' Aquatic Nuisance
Species electric dispersal barrier system (EDBS).
DATES: Comments and related material must be received by the Coast
Guard on or before April 30, 2018.
ADDRESSES: You may submit comments identified by docket number USCG-
2017-1095 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: If you have questions about this
proposed rulemaking, call or email Lieutenant John Ramos, Marine Safety
Unit Chicago, U.S. Coast Guard; telephone (630) 986-2131, email
[email protected].
SUPPLEMENTARY INFORMATION:
I. Table of Abbreviations
CFR Code of Federal Regulations
CSSC Chicago Sanitary and Ship Canal
DHS Department of Homeland Security
EDBS Electric Dispersal Barrier System
E.O. Executive order
FR Federal Register
NPRM Notice of proposed rulemaking
Pub. L. Public Law
RNA Regulated Navigation Area
Sec. Section
U.S.C. United States Code
II. Background, Purpose, and Legal Basis
The purpose of this proposed rule is to eliminate a redundant
safety zone and remove several requirements from a Regulated Navigation
Area that are no longer necessary. There currently exists, in 33 CFR
165.923, certain navigational, environmental, and operational
restrictions on all vessels transiting the navigable waters located
adjacent to and over the U.S. Army Corps of Engineers' Aquatic Nuisance
Species electric dispersal fish barrier. 33 CFR 165.923(a)(1)
establishes a safety zone in the CSSC from mile marker 296.1 to mile
marker 296.7. Additionally, 33 CFR 165.923(b)(1) establishes a
regulated navigation area from mile marker 295.5 to mile marker 297.2.
There also exists, in 33 CFR 165.930, a safety zone from mile marker
286.0 to mile marker 333.3 that includes the totality of the safety
zone in 33 CFR 165.923(a)(1), rendering it redundant.
In 2013, the U.S. Coast Guard Research and Development Center
completed a marine safety risk assessment for the waters of the CSSC in
the vicinity of the Aquatic Nuisance Species EDBS near Romeoville,
Illinois. The overarching goal of the risk assessment was to determine
the adequacy of present risk mitigation strategies and, if necessary,
recommend alternatives to the present strategies. The report generated
at the conclusion of the risk assessment noted apparent confusion among
waterway users regarding the boundaries and requirements for the safety
zone and RNA outlined in 33 CFR 165.923. The report also identified
certain requirements still in effect which had basis in the existing
Rule that have since changed over the period of the rule and may longer
currently apply. This Notice of Proposed Rulemaking addresses
recommended amendments to the regulations based on the report's
conclusions and recommendations.
The proposed amendments are intended to improve safety, reduce
confusion and eliminate unnecessary burden to vessels transiting the
safety zone and RNA of the CSSC in the vicinity of the EDBS near
Romeoville, Illinois. The Coast Guard is issuing this proposed rule
under 33 U.S.C. 1231; 46 U.S.C. Chapter 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland
Security Delegation No. 0170.1.
III. Discussion of Proposed Rule
The purpose of safety zone delineated in Sec. 165.923(a)(1) is to
inhibit the potential transfer of live Silver or Asian carp, viable
eggs or gametes into the waterway north of the electric barrier. To
serve this purpose, the safety zone requirements outlined in 33 CFR
165.923(a)(2) restrict vessels transiting with non-potable water on
board if they intend to release that water in any form within or on the
other side of the safety zone. A larger safety zone, described at 33
CFR 165.930(a)(2), also encompasses this same area. That safety zone,
however, does not contain regulations prohibiting vessels from
transiting the zone if they have any non-potable water onboard and
intent to release that water within or beyond the safety zone.
The Coast Guard also proposes to eliminate the CSSC safety zone
outlined in 33 CFR 165.923(a). This revision would eliminate redundancy
currently existing in regulations because the CSSC is already regulated
by the larger safety zone delineated in 33 CFR 165.930(a)(2). The
requirements in 33 CFR 165.923(a)(2) for the transit of non-potable
water would be preserved, but incorporated into the CSSC's RNA
regulations in what is now 33 CFR 165.923(b)(2). Therefore, 33 CFR
165.923(b) will become 33 CFR 165.923(a) with the elimination of the
safety zone. The following paragraphs describe additional changes that
will be made to the RNA regulations.
The Coast Guard proposes to remove the RNA's bow boat requirement
in 33 CFR 165.923(b)(2)(ii)(C). The RNA currently requires that all up-
bound and down-bound tows that consist of barges carrying flammable
liquid cargoes (Grade A through C, flashpoint below 140 degrees
Fahrenheit, or heated to within 15 degrees Fahrenheit of flash point)
engage the services of a bow boat at all times until the entire tow is
clear of the RNA. The original bow boat requirement intended to reduce
the possibility of a spark-induced event due to allision between a
barge carrying flammable liquid cargo and barges at the Will County
Generating Station Coal Wharf (RDB MM 296.0) while the facility
conducted coal loading and barge fleeting. At times barge fleets were
three-wide (approximately 105 feet), extending into the 160-wide cut,
less than 500 feet downstream of Barrier II-A. Since barge loading and
fleeting ceased in September 2012, the basis for this requirement no
longer exists.
The Coast Guard also proposes to modify the requirement in 33 CFR
165.923(b)(2)(ii)(E) that commercial tows be made up with only wire
rope to ensure electrical connectivity between all segments of the tow.
The purpose of this requirement is to ensure electrical connectivity
between all segments of the tow in order to prevent arcing while
transiting the electric barrier and to prevent high contact potentials
between vessels in the tow. However, the Coast Guard recognizes that
adequate means of securing a tow configuration are not exclusive to the
use of wire rope and towboats frequently use high-tensile strength
aramid, high-modulus polyethylene, or composite fiber ropes (``soft-
lines'') as wing-wires or face-wires, and occasionally as barge
lashings. Government observers have seen towboats use a single, wire-
rope from barge winch to towboat h-bitt, thus providing adequate
electrical connectivity, if sufficiently taut, and contacting bare-
metal surfaces. The Coast Guard thus proposes to continue to require
that commercial tows transiting the RNA ensure the maintenance of
electrical connectivity between all segments of the tow through use of
wire rope, but allow use of soft
[[Page 4173]]
lines to be used in addition to secure a tow. To account for use of
soft-lines, the Coast Guard proposes to eliminate the requirement that
a tow exclusively use wire rope, by removing the words ``with only''
from the subsection and allowing an appropriate alternative.
Finally, the Coast Guard proposes to add a requirement to the RNA
regulations that all vessels transit the RNA at a ``no-wake'' speed.
Currently, the RNA does not provide a maximum safe speed for vessels
transiting the RNA. Throughout the course of the marine risk
assessment, the project team ascertained that the largest marine safety
risk is electric shock to a person in the water. Video recording and
shore-observer accounts indicate that many, smaller recreational
vessels transit the EDBS at a speed that generates significant wake.
Also, light-boat transits drag a wake that causes surging of barges
moored to the loading facility just north of the pipeline arch. A no-
wake zone would reduce this risk not only to persons aboard vessels,
but also to persons working ashore alongside the RNA.
The aforementioned changes to the RNA regulations would require a
slight reordering of what is now 33 CFR 165.923(b)(2)(ii)(A)-(K). With
the removal of the safety zone, these regulations would be found in 33
CFR 165.923(a). The removal of the bow boat requirement in 33 CFR
165.923(b)(2)(ii)(C) would cause the other requirements to move up a
letter, becoming the new 33 CFR 165.923(a)(2)(ii)(C)-(J). The ``no
wake'' requirement would then become the new 33 CFR
165.923(a)(2)(ii)(K) and the requirements for the transit of non-
potable water would be added in a new section, 33 CFR
165.923(a)(2)(ii)(L).
IV. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and executive orders (E.O.s) related to rulemaking. Below we summarize
our analyses based on a number of the statutes and E.O.s, and we
discuss First Amendment rights of protestors.
A. Regulatory Planning and Review
E.O.s 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 13563 emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility.
E.O. 13771 directs agencies to control regulatory costs through a
budgeting process. This NPRM has not been designated a ``significant
regulatory action,'' under E.O. 12866. Accordingly, the NPRM has not
been reviewed by the Office of Management and Budget, and pursuant to
OMB guidance it is exempt from the requirements of E.O. 13771. As this
proposed rule is anticipated to not be a significant regulatory action,
this rule is exempt from the requirements of Executive Order 13771. See
OMB's Memorandum titled ``Interim Guidance Implementing Section 2 of
the Executive Order of January 30, 2017 titled `Reducing Regulation and
Controlling Regulatory Costs''' (February 2, 2017).
The proposed rule is not a significant regulatory action because
this is an updated version with minor changes to an already existing
rule. We anticipate that it will have minimal impact on the economy,
will not interfere with other agencies, will not adversely alter the
budget of any grant or loan recipients, and will not raise any novel
legal or policy issues.
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 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.
The proposed revision of the safety zone and RNA will not have a
significant economic impact on a substantial number of small entities
because the proposed revision imposes minor additional requirements on
industry; and provides clarity to preexisting requirements by removing
redundancies. The proposed rule, by removing the bow boat requirement
due the ceased barge loading and fleeting operations, would in turn
reduce regulated costs.
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
section. 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 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 E.O. 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 E.O. 13132.
Also, this proposed rule does not have tribal implications under
E.O. 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 would not
result in such an expenditure, we do discuss the effects of this rule
elsewhere in this preamble.
[[Page 4174]]
F. Environment
We have analyzed this proposed rule under DHS Management Directive
023-01, which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and 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 involves revisions
of the safety zone and RNA that provide clarity to preexisting
requirements. Normally such actions are categorically excluded from
further review under paragraph L60 of Appendix A, Table 1 of DHS
Instruction Manual 023-01-001-01, Rev. 01. Paragraph L60 pertains to
establishing, disestablishing, or changing Regulated Navigation Areas
and Safety Zones. A preliminary Record of Environmental Consideration
(REC) supporting this determination is available in the docket where
indicated under the ADDRESSES section of this preamble. We seek any
comments or information that may lead to the discovery of a significant
environmental impact from this proposed 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, you may review a Privacy Act notice regarding the Federal
Docket Management System in the March 24, 2005, issue of the Federal
Register (70 FR 15086).
Documents mentioned in this NPRM as being available in the 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 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes
to amend 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; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No.
0170.1.
0
2. Revise Sec. 165.923 to read as follows:
Sec. 165.923 Regulated Navigation Area, Chicago Sanitary and Ship
Canal, Romeoville, IL.
(a) Regulated Navigation Area. (1) The following is a regulated
navigation area (RNA): All waters of the Chicago Sanitary and Ship
Canal, Romeoville, IL located between mile marker 295.5 and mile marker
297.2.
(2) Regulations. (i) The general regulations contained in 33 CFR
165.13 apply.
(ii) Vessels that comply with the following restrictions are
permitted to transit the RNA:
(A) Vessels must be greater than 20 feet in length.
(B) Vessels must not be a personal or human powered watercraft
(i.e., jet skis, waver runners, kayaks, row boats, etc.).
(C) Vessels engaged in commercial service, as defined in 46 U.S.C.
2101(5), may not pass (meet or overtake) in the RNA and must make a
SECURIT[Eacute] call when approaching the RNA to announce intentions
and work out passing arrangements.
(D) Commercial tows transiting the RNA must use wire rope or
appropriate alternatives to ensure electrical connectivity between all
segments of the tow.
(E) All vessels are prohibited from loitering in the RNA.
(F) Vessels may enter the RNA for the sole purpose of transiting to
the other side and must maintain headway throughout the transit. All
vessels and persons are prohibited from dredging, laying cable,
dragging, fishing, conducting salvage operations, or any other
activity, which could disturb the bottom of the RNA.
(G) Except for law enforcement and emergency response personnel,
all personnel on vessels transiting the RNA should remain inside the
cabin, or as inboard as practicable. If personnel must be on open
decks, they must wear a Coast Guard approved personal flotation device.
(H) Vessels may not moor or lay up on the right or left descending
banks of the RNA.
(I) Towboats may not make or break tows if any portion of the
towboat or tow is located in the RNA.
(J) Persons onboard any vessel transiting the RNA in accordance
with this rule or otherwise are advised they do so at their own risk.
(K) All vessels transiting the RNA are required to transit at a no
wake speed but still maintain bare steerageway.
(L) Non-potable water. (i) All vessels are prohibited from
transiting the restricted navigation area with any non-potable water on
board if they intend to release that water in any form within, or on
the other side of the restricted navigation area. Non-potable water
includes, but is not limited to, any water taken on board to control or
maintain trim, draft, stability, or stresses of the vessel. Likewise,
it includes any water taken on board due to free communication between
the hull of the vessel and exterior water. Potable water is water
treated and stored aboard the vessel that is suitable for human
consumption.
(ii) Vessels with non-potable water on board are permitted to
transit the restricted navigation area if they have taken steps to
prevent the release, in any form, of that water in or on the other side
of the restricted navigation area. Alternatively, vessels with non-
potable water on board are permitted to transit the restricted
navigation area if they have plans to dispose of the water in a
biologically sound manner.
(iii) Vessels with non-potable water aboard that intend to
discharge on the other side of the restricted navigation area must
contact the Coast Guard's Ninth District Commander or his or her
designated representatives prior to
[[Page 4175]]
transit and obtain permission to transit and discharge. Examples of
discharges that may be approved include plans to dispose of the water
in a biologically sound manner or demonstrate through testing that the
non-potable water does not contain potential live Silver or Asian carp,
viable eggs, or gametes.
(iv) In accordance with the general regulations in Sec. 165.23 of
this part, entry into, transiting, or anchoring within this safety zone
by vessels with non-potable water on board is prohibited unless
authorized by the Coast Guard's Ninth District Commander, his or her
designated representatives, or an on-scene representative.
(v) The Captain of the Port, Lake Michigan, may further designate
an ``on-scene'' representative. The Captain of the Port, Lake Michigan,
or the on-scene representative may be contacted via VHF-FM radio
Channel 16 or through the Coast Guard Lake Michigan Command Center at
(414) 747-7182.
(b) Definitions. The following definitions apply to this section:
Designated representative means the Captain of the Port Lake
Michigan and Commanding Officer, Marine Safety Unit Chicago.
On-scene representative means any Coast Guard commissioned, warrant
or petty officer who has been designated by the Captain of the Port,
Lake Michigan, to act on his or her behalf. The on-scene representative
of the Captain of the Port, Lake Michigan, will be aboard a Coast
Guard, Coast Guard Auxiliary, or other designated vessel or will be
onshore and will communicate with vessels via VHF-FM radio or
loudhailer.
Vessel means every description of watercraft of other artificial
contrivance used, or capable or being used, as a means of
transportation on water. This definition includes, but is not limited
to, barges.
(c) Compliance. All persons and vessels must comply with this
section and any additional instructions or orders of the Coast Guard's
Ninth District Commander or his or her designated representatives. Any
person on board any vessel transiting this RNA in accordance with this
rule or otherwise does so at his or her own risk.
(d) Waiver. For any vessel, the Coast Guard's Ninth District
Commander or his or her designated representatives may waive any of the
requirements of this section, upon finding that operational conditions
or other circumstances are such that application of this section is
unnecessary or impractical for the purposes of vessel and mariner
safety.
Dated: January 11, 2018.
J.M. Nunan,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2018-01745 Filed 1-29-18; 8:45 am]
BILLING CODE 9110-04-P