[Federal Register Volume 78, Number 135 (Monday, July 15, 2013)]
[Rules and Regulations]
[Pages 42012-42015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16803]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2011-1108]
RIN 1625-AA11, 1625-AA00
Safety Zone and Regulated Navigation Area; Chicago Sanitary and
Ship Canal, Romeoville, IL
AGENCY: Coast Guard, DHS.
ACTION: Interim rule with request for comments.
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SUMMARY: The Coast Guard is issuing this Interim Rule to address two
omissions from the regulatory text of the Safety zone and Regulated
Navigation Area in the Chicago Sanitary and Ship Canal, Romeoville, IL.
These omissions include requirements for the regulated navigation area
that vessels must be greater than twenty feet in length and must not be
a personal or human powered watercraft of any kind (e.g. jet skis, wave
runners, kayaks, row boats, etc.). This revision is intended to make
the regulatory text consistent with the discussion of the rule as
originally published in the Federal Register on December 12, 2011.
DATES: This rule will be enforced with actual notice from June 19,
2013, until July 15, 2013. This rule is effective in the Code of
Federal Regulations on July 15, 2013. Comments and related material
must be received by the Coast Guard on or before August 14, 2013.
ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2011-1108 and are available online
by going to www.regulations.gov, inserting USCG-2011-1108 in the
``SEARCH'' box, and then clicking ``Search.'' They are also available
for inspection or copying at 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.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call CDR Scott Anderson, U.S. Coast Guard, Ninth District Prevention
Department, Cleveland, OH, at (216) 902-6049 or email him at
[email protected]. If you have questions on viewing or
submitting material to the docket, call Barbara Hairston, Program
Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
ACOE U.S. Army Corps of Engineers
CSSC Chicago Sanitary and Ship Canal
CFR Code of Federal Regulations
DHS Department of Homeland Security
IR Interim Rule
NPRM Notice of Proposed Rulemaking
RNA Regulated Navigation Area
A. Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided.
1. Submitting Comments
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. You may submit your comments and material online (via
http://www.regulations.gov) or by fax, mail, or hand delivery, but
please use only one of these means. If you submit a comment online via
www.regulations.gov, it will be considered received by the Coast Guard
when the comment is successfully transmitted; a comment submitted via
fax, hand delivery, or mail, will be considered as having been received
by the Coast Guard when the comment is received at the Docket
Management Facility. We recommend that you include your name and a
mailing address, an email address, or a telephone number in the body of
your document so that we can contact you if we have questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov,
type the docket number in the ``SEARCH'' box and click ``SEARCH.''
Click on ``Submit a Comment'' on the line associated with this
rulemaking.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to
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know that they reached the Facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period and may change the rule
based on your comments.
2. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov,
type the docket number in the ``SEARCH'' box and click ``SEARCH.''
Click on ``OPEN DOCKET FOLDER'' on the line associated with this
rulemaking. You may also visit the Docket Management Facility in Room
W12-140 on the ground floor of the Department of Transportation West
Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
3. Privacy Act
Anyone can search the electronic form of comments received into any
of our dockets by the name of the individual submitting the comment (or
signing the comment, if submitted on behalf of an association,
business, labor union, etc.). You may review a Privacy Act notice
regarding our public dockets in the January 17, 2008, issue of the
Federal Register (73 FR 3316).
4. Public Meeting
We do not now plan to hold a public meeting. You may submit a
request for one using one of the four methods specified under
ADDRESSES. Please explain why you believe a public meeting would be
beneficial. If we determine that one would aid this rulemaking, we will
hold one at a time and place announced by a later notice in the FR.
B. Regulatory History and Information
Since 2005, the Coast Guard has established and enforced a series
of safety zones and RNAs on the CSSC to address safety risks associated
with the operation of the ACOE's electric dispersal fields. A summary
of this regulatory history can be found in the background section of
the final rule establishing the current version of 33 CFR 165.923 (76
FR 77121). Notably, the Coast Guard published a temporary final rule
with request for comments in the Federal Register on December 2, 2010
(75 FR 75145). This rule established RNA restrictions for the CSSC,
which included requirements that (1) vessels must be greater than
twenty feet in length and (2) must not be personal or human powered
watercraft of any kind. Although these requirements were adopted and
discussed in 76 FR 77121 (see Discussion of Rule), they were omitted
from the regulatory text of 33 CFR 165.923. To correct this discrepancy
and conform the regulation to established enforcement practice of the
RNA, the Coast Guard is issuing this IR.
The Coast Guard is issuing this IR without prior notice and
opportunity to comment pursuant to authority under section 4(a) of the
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because doing so would be impracticable and
is unnecessary. The fish barrier remains active and publishing an NPRM
and accepting comments prior to the issuance of an effective rule is
impracticable because it inhibits the Coast Guard's ability to protect
vessels less than 20 feet in length and personal watercrafts from harm.
The electrified barriers pose a significant threat of harm to vessels
less than 20 feet in length and personal watercrafts.
Additionally, the RNA restrictions that (1) vessels must be greater
than twenty feet in length and (2) must not be personal or human
powered watercraft of any kind were subject to a 30 day comment period
in a temporary interim rule establishing the RNA for the CSSC (75 FR
75145), which published on December 2, 2010. The Coast Guard received
no comments on portions relating to vessels less than 20 feet or
personal watercrafts. Moreover, based on the Coast Guard's
interpretation of that temporary interim rule, as discussed in its
preamble, vessels less than 20 feet and personal watercraft are not
allowed to travel through the barrier. Because the restriction on
vessels less than 20 feet and personal watercraft has already been the
subject public comment and the Coast Guard has interpreted the
temporary interim rule published at 75 FR 75145 to exclude these
vessels, prior notice and comment for this interim rule is unnecessary.
Although the Coast Guard finds that good cause exists not to
publish an NPRM, comments from the public as to the addition of this
provision to the regulation text are welcomed. The Coast Guard will
consider comments prior to the finalization of this rule. Such comments
may be submitted by following the instruction in the Public
Participation and Request for Comments section.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists for making this rule effective less than 30 days after
publication in the Federal Register. For the same reasons discussed
above about not publishing an NPRM, the Coast Guard finds that waiting
for a 30 day notice period to run would be unnecessary, impracticable,
and contrary to the public interest.
C. Basis and Purpose
In response to the threat of Asian carp reaching the Great Lakes
and devastating the Great Lakes commercial and sport fishing
industries, the ACOE began in 2002 the operation of a series of
electrical barriers in the CSSC. These barriers are located
approximately 30 miles from Lake Michigan and create an electric field
in the water by pulsing low voltage DC current through steel cables
secured to the bottom of the canal. Currently, three electrical
barriers are in operation. These barriers are meant to prevent and
reduce the dispersal of Asian carp in the CSSC.
The Coast Guard's Ninth District Commander has determined that the
electric current radiated from the electric barriers poses certain
safety risks to commercial vessels, recreational boaters, and people on
or in portions of the CSSC in the vicinity of the barriers.
Consequently, the Coast Guard's Ninth District Commander has concluded
that an RNA is necessary to mitigate such risks.
In addition to safety concerns about electric current in the water,
concerns have also been raised about the potential transport of carp
eggs, gametes, and juvenile fish in bilge, ballast, or other non-
potable water from south of the barriers to waters north of the
barriers. To address these concerns, the Coast Guard's Ninth District
Commander has determined that a safety zone is necessary to mitigate
the threat of such transportation.
For a fuller discussion on the history of the electrical dispersal
barriers and the potential transportation of eggs, gametes, and
juvenile fish across the barriers see 70 FR 76694, 75 FR 754, and 75 FR
75145, which were published on December 28, 2005, January 6, 2010, and
December 2, 2010 respectively.
To address the aforesaid safety risks, the Coast Guard's Ninth
District Commander, as discussed in the Regulatory History and
Information section, established a series of safety
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zones and RNAs from 2005 to 2010. Most recently, on December 1, 2011,
the Coast Guard's Ninth District Commander established a permanent RNA
on all waters located adjacent to, and over, the electrical dispersal
barriers on the CSSC between mile marker 295.5 and mile marker 297.2
(76 FR 77121). In the same rule-making, the Coast Guard's Ninth
District Commander also established a permanent safety zone over a
smaller portion of the same waterway between mile marker 296.1 and mile
marker 296.7. This rule-making represents the current version of 33 CFR
165.923.
D. Discussion of Rule
This IR only addresses two requirements in the RNA of 33 CFR
165.923, which although included in the Discussion of Rule of 76 FR
77121 were omitted from the regulatory text of 33 CFR 165.923. As
previously noted, these requirements are that (1) vessels must be
greater than twenty feet in length and (2) must not be a personal or
human powered watercraft of any kind (i.e. jet skis, wave runners,
kayaks, row boats, etc.). These requirements, as with all others
included in the 33 CFR 165.923, are necessary for safe navigation of
the RNA and to ensure the safety of vessels and their personnel as well
as the public in general. The requirements are also necessary to
protect against the harms presented by a potential invasion of Asian
carp in Lake Michigan.
Deviation from this final rule is prohibited unless specifically
authorized by the Coast Guard's Ninth District Commander or his or her
designated representatives. For the life of this RNA, the Coast Guard's
Ninth District Commander designates as his or her representatives the
Captain of the Port, Sector Lake Michigan, and the Commanding Officer,
Marine Safety Unit Chicago.
The safety zone and RNA will be enforced at all times. If, however,
enforcement of the safety zone or RNA is at any time suspended, the
Coast Guard's Ninth District Commander or his or her designated
representatives will cause notice of the suspension to be made by all
appropriate means to effect the widest publicity among the affected
segments of the public.
E. Regulatory Analyses
We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on these statutes or executive orders.
1. Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, as
supplemented by Executive Order 13563, Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of Executive Order 12866 or
under section 1 of Executive Order 13563. The Office of Management and
Budget has not reviewed it under those Orders. It is not
``significant'' under the regulatory policies and procedures of the
Department of Homeland Security (DHS).
We conclude that this rule is not a significant regulatory action
because 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. The two RNA restrictions are limited in scope
to vessels under twenty feet in length and personal watercraft of any
kind.
2. 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 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 or operators of vessels under 20 feet and
personal or human powered watercraft intending to transit the RNA
during enforcement. This RNA will not have a significant economic
impact on a substantial number of small entities for the following
reasons: The RNA restrictions in this rule are limited in scope of
vessels under 20 feet and personal or human powered watercraft.
3. 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.
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.
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.
4. 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).
5. 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.
6. 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 expenditure, we do discuss the effects of this rule elsewhere
in this preamble.
7. Taking of Private Property
This rule will not affect the taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
8. Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to
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minimize litigation, eliminate ambiguity, and reduce burden.
9. 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.
10. 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.
11. 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 has not designated it as a significant energy
action. Therefore, it does not require a Statement of Energy Effects
under Executive Order 13211.
12. 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.
13. 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 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 the establishment of a regulated
navigation area, and, therefore it is categorically excluded from
further review under paragraph 34(g) of Figure 2-1 of the Commandant
Instruction. An environmental analysis checklist supporting this
determination and a Categorical Exclusion Determination are available
in the docket where indicated under ADDRESSES. We seek any comments or
information that may lead to the discovery of a significant
environmental impact from this rule.
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, 3306, 3703; 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. Revise Sec. 165.923(b) to read as follows:
Sec. 165.923 Safety Zone and Regulated Navigation Area, Chicago
Sanitary and Ship Canal, Romeoville, IL.
* * * * *
(b) 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, wave runners, kayaks, row boats, etc.).
(C) All up-bound and down-bound barge tows that consist of barges
carrying flammable liquid cargos (Grade A through C, flashpoint below
140 degrees Fahrenheit, or heated to within 15 degrees Fahrenheit of
flash point) must engage the services of a bow boat at all times until
the entire tow is clear of the RNA.
(D) 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
SECURITE call when approaching the RNA to announce intentions and work
out passing arrangements.
(E) Commercial tows transiting the RNA must be made up with only
wire rope to ensure electrical connectivity between all segments of the
tow.
(F) All vessels are prohibited from loitering in the RNA.
(G) 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.
(H) 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.
(I) Vessels may not moor or lay up on the right or left descending
banks of the RNA.
(J) Towboats may not make or break tows if any portion of the
towboat or tow is located in the RNA.
(K) Persons on board any vessel transiting this RNA in accordance
with this rule or otherwise are advised they do so at their own risk.
* * * * *
Dated: June 19, 2013.
M.N. Parks,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2013-16803 Filed 7-12-13; 8:45 am]
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