[Federal Register Volume 64, Number 176 (Monday, September 13, 1999)]
[Proposed Rules]
[Page 49424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23718]


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DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

[CGD 09-99-007]


Safety Zone, Detroit River

AGENCY: Coast Guard, DOT.

ACTION: Notice; withdrawal of proposed rule.

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SUMMARY: The Coast Guard is withdrawing a notice of proposed rulemaking 
(NPRM) to establish a temporary safety zone on the American side of the 
Detroit River for the Windsor Can-AM Offshore Power Boat Race. The 
event sponsor withdrew his application for safety reasons, and based on 
comments received by the Coast Guard, the proposed rule was criticized 
and deemed not in the best interest of this vital international 
waterway.

DATES: This proposed rule is withdrawn effective July 30, 1999.

ADDRESSES: Unless otherwise indicated, documents referred to in this 
notice are available for inspection or copying at Marine Safety Office, 
Detroit between 7 a.m. and 4 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: LTJG French, Coast Guard Marine Safety 
Office Detroit, 110, at 313-568-9580.

SUPPLEMENTARY INFORMATION: 

Regulatory History

    On 3 May, 1999, the Coast Guard published a notice of proposed 
rulemaking in the Federal Register (64 FR 23570-23571) that the 
American side of the Detroit River would be closed for the Windsor Can-
Am Offshore Race, which at the time was scheduled to take place on 
August 22, 1999. In the mean time, the Coast Guard received notice from 
the event organizer on June 4, 1999 of his intention not to hold the 
race. The organizer noted safety concerns resulting from recent fatal 
accidents in the Detroit river where high currents and murky waters 
made rescue of victims impossible. The event sponsor believed such a 
race in such a location was ``unsafe.''
    The Coast Guard received 7 letters in response to its proposed 
rulemaking during the public comment period, all of which were opposed 
to the closure. Relevant issued commenters raised ranged from adverse 
economic consequences that were likely to result from the river closure 
to possible violations of existing binational agreements between the 
United States and Canada
    1. The Detroit and St. Clair River system hereafter called the 
Detroit River Corridor, is a key international trade route, that if 
closed, would adversely affect the entire Great Lakes and restrict 
access to other key economic ports.
    2. The proposed closure appears to contradict the Boundary Waters 
Treaty of 1909 which states in part, ``The navigation of all boundary 
waters shall forever continue free and open for the purposes of 
commerce to the inhabitants and to the ships, vessels and boats of both 
countries equally.'' The treaty goes on to establish a precedence to be 
observed among the various uses enumerated . . . for these waters.'' 
According to the treaty, ``No use shall be permitted which tends 
materially to conflict with or restrain any other use which is given 
preference over it in this order of precedence:
    (1) Uses for domestic and sanitary purposes;
    (2) Uses for navigation
    (3) Uses for power and irrigation.''

As the term ``domestic'' is not defined, and recreational use is not 
spelled out or given priority in the treaty, decisions on boundary 
water uses are in the purview of the International Joint Commission.
    3. Closure of the river for even a few hours has a ripple effect on 
commercial shipping in the Great Lakes that causes more than a minor 
inconvenience to vessels. Closure of any part of the Detroit River 
Corridor presents safety issue for vessel operators related to reduced 
speed and steerage. Compound that with closure of the Belle Isle 
Anchorage and, for the prudent commercial mariner, you shut down the 
entire river system for up to six hours, shutting down commercial 
navigation from Lake Erie to Lake Huron. Such a closure would have a 
detrimental effect not only on vessel operators, but also pilots and 
terminal operators, with impacts on the time sensitive nature of 
delivering raw materials to Great lakes ports and plants.
    4. Race locations are variables that can be controlled, so as not 
to impede safe commercial navigation. Races similar to the one proposed 
are conducted in other areas all over the Great Lakes without river 
closures. A notable example is the Detroit Thunderfest. Those events 
are held in locations mutually agreeable to recreational and 
navigational interests. Closure of the river for this event to promote 
essentially a single sponsor's commercial use of the river over 
navigational use would set a precedent that might lead to applications 
for more such events in the future, resulting in further restrictions 
to navigation. More than that, though, a decision to close the river to 
the commercial advantage of one sponsor gives that sponsor a material 
benefit that other sponsors do not get--an arbitrary and capricious 
decision in favor of one person or group, made to the disadvantage and 
harm of others. It isn't fair.
    5. The proposed rulemaking does not address fully the idea of just 
compensation for the maritime community adversely affected by the 
action. Costs are difficult to calculate, especially hidden costs. A 
more detailed agreement on compensation would need to be worked out 
well in advance of any such event.
    The Coast Guard agrees with all these points of contention. Before 
withdrawing his permit application, the event sponsor did not have the 
benefit of the public comments in this matter or an opportunity to 
address the issues raised during the comment period. The Coast Guard 
appreciates all the efforts of the regulated community in sharing its 
views and will retain the public docket for future use. Accordingly, 
the Coast Guard is withdrawing the notice of proposed rulemaking and 
terminating further rulemaking on this proposal. Based on the 
regulatory history of this event, the Coast Guard Captain of the Port 
Detroit will be reluctant to consider proposed closures in any part of 
the Detroit River Corridor in the future. The Coast Guard will also 
work closely with Canadian Officials and the International Joint 
Commission to ensure that all provisions of the Boundary Waters Treaty 
of 1909 are upheld.

    Dated July 30, 1999.
B. P. Hall,
Commander, USCG, Acting Captain of the Port, Detroit.
[FR Doc. 99-23718 Filed 9-10-99; 8:45 am]
BILLING CODE 4910-15-M