[Federal Register Volume 68, Number 222 (Tuesday, November 18, 2003)]
[Rules and Regulations]
[Pages 64988-64990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28801]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD09-03-214]
RIN 1625-AA11


Regulated Navigation Area; Des Plaines River, Joliet, IL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is revising the effective period for a 
regulated navigation area (RNA) on the Des Plaines River in Joliet, 
Illinois. This action is necessary to ensure vessel and public safety 
due to several serious allisions with this bridge structure. This rule 
is intended to restrict vessel traffic in a portion of the Des Plaines 
River near Joliet, Illinois.

DATES: Effective November 15, 2003. Section 165.T09-214 expires March 
1, 2004.

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 [CGD09-02-214] and are available for inspection or 
copying at Coast Guard Marine Safety Office (MSO) Chicago, 215 W. 83rd 
St., Suite D, Burr Ridge, Illinois 60521 between 8 a.m. and 3:30 p.m., 
Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: MST2 Kenneth Brockhouse, U.S. Coast 
Guard Marine Safety Office Chicago, at (630) 986-2175.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On May 21, 2003, we published a temporary final rule (TFR) entitled 
``Regulated Navigation Area; Des Plaines River, Joliet, Illinois'' in 
the Federal Register (68 FR 27727). We received 25 letters commenting 
on that TFR which we have summarized in the Discussion of Comments 
section. We plan on addressing those comments in the notice of proposed 
rulemaking (NPRM). The only adjustment being made to the temporary 
Sec.  165.T09-214 created by the May 21, 2003 TFR is the effective 
period. No public meeting was requested and none was held.
    We are extending the effective period of the temporary final rule 
so that we can complete rulemaking CGD09-03-285 Regulated Navigation 
Area, Joliet, Illinois, to permanently establish restrictions on 
southbound tows transiting the Des Plaines River through Joliet, 
Illinois. Past allisions with the Jefferson Street Bridge highlight 
safety concerns when certain tows transiting this area. Extending the 
effective period until March 1, 2004 should provide sufficient time to 
complete the rulemaking. Since the temporary rule was to expire 
November 15, 2003, we are reinstating and revising it effective 
November 15, 2003.
    We did not publish a notice of proposed rulemaking (NPRM) for this 
rule and it is being made effective less than 30 days after publication 
in the Federal Register. When we promulgated the May 21, 2003 TFR, we 
were still ascertaining what steps were required in response to an 
allision just prior to that date. We received numerous comments in 
response to our temporary final rule as to what future actions were 
desirable.
    Since public response to this temporary final rule was anticipated, 
we are currently finalizing an NPRM to be published shortly. That 
rulemaking will follow normal notice and comment procedures, and a 
final rule should be published before March 1, 2004.
    Continuing the temporary final rule in effect while permanent 
rulemaking is in progress will help ensure the safety of this bridge 
structure. On May 2, 2003, a tow allided with the pier of the Jefferson 
Street Bridge which resulted in substantial damage to the bridge 
structure. As a result, it is estimated that the bridge will be 
inoperable for 4 to 6 months while repairs are made. The Captain of the 
Port Chicago believes that immediate action is necessary to help 
prevent any future allisions with the pier. Further, additional 
allisions might result in total structural failure, closure of the 
river for a period of time as a result of an allision, and the possible 
loss of life as a result of another allision. Prior to this accident, 
another tow had allided with the bridge, which resulted in a closure of 
over 6 months. These allisions are not only dangerous to the safety of 
navigation, but also to persons who are on the bridge as tows transit 
underneath. Therefore, under 5 U.S.C. 553(b)(B) and (d)(3) good cause 
exists for why an NPRM is not required and why this rule will be made 
effective fewer than 30 days after publication in the Federal Register.

Background and Purpose

    On May 2, 2003, a southbound tow allided with the pier of the 
Jefferson Street bridge. This allision resulted in significant 
structural damage to the bridge pier. Southbound tows with a 3 by 5 
configuration, transiting under the Cass Street Bridge and then the 
Jefferson Street Bridge, only have 100 feet of

[[Page 64989]]

horizontal maneuvering room. In addition, the Des Plaines River 
regularly has significant current in this area.
    In order to prevent future allisions, an RNA was established from 
the Ruby Street Bridge to the McDonough Street Bridge in which 
southbound tows in a 3 by 5 configuration must use an assist tug. This 
RNA is being established until an adequate protection cell is 
constructed around the bridge pier.

Discussion of Rule

    Southbound tows greater than 89 feet in overall width and more than 
800 feet in length must use an assist tug when transiting through the 
RNA. This RNA encompasses the Des Plaines River from mile 288.7 (the 
Ruby Street Bridge), to mile 287.3 (the McDonough Street Bridge). 
Deviation from this rule is prohibited unless specifically authorized 
by the Commander, Ninth Coast Guard District or his designated 
representative. His designated representative is the Captain of the 
Port Chicago.

Discussion of Comments

    As of September 1, 2003, we received 25 written comments on the 
temporary final rule. All comments received generally focused on: (1) 
Length of Tows; (2) Width of Tows; (3) Protection Cells; (4) Tug 
Assist; (5) Economic Impact; and (6) Direction of Regulated Navigation 
Area.
    Length of Tows. Several comments were received with the concern of 
length of tows. Three comments stated that the wording was confusing. 
Eight comments received wanted the length of tows shorter than 
described and 1 comment received stated that the length is too 
restrictive.
    Width of Tows. We received eight comments stating that the width of 
tows should be reduced smaller and one comment stating that the width 
requirement is too restrictive.
    Protection Cells. Nine comments were received stating that 
protection cells should be constructed along the Des Plaines River in 
the Joliet Harbor area.
    Tug Assist. Eight comments were received stating that tug assists 
were not needed due to the channel being too narrow and that it would 
be too expensive. Three comments were in favor of tug assists
    Economic Impact. Economic Impact is divided into the impact felt by 
the maritime industry as well as the business district of Joliet 
Harbor. Eight comments were received by the maritime industry stating 
that the regulated navigation area will cause a loss in business due to 
the restrictions placed on number of barges allowed through Joliet 
Harbor. Ten comments were received by the business' in Joliet stating 
that the regulated navigation area will protect the bridges and will 
allow uninterrupted flow of traffic from a bridge being down due to 
casualties caused by the maritime industry.
    Direction of Regulated Navigation Area. We received 8 comments 
stating that the regulation should include northbound tows as well as 
southbound. Five comments were received stating the restriction should 
only be required for southbound tows.

Regulatory Evaluation

    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. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security. The operational reporting requirements of the RNA are minimal 
and necessary to provide immediate, improved security for the public, 
vessels, and U.S. ports and waterways. The requirements do not alter 
normal barge cargo loading operations or transits. Additionally, this 
rule is temporary in nature and the Coast Guard may issue an NPRM as it 
considers whether to make this rule permanent. The minimal hardships 
that may be experienced by persons or vessels are necessary to the 
national interest in protecting the public, vessels, and vessel crews 
from the devastating consequences of acts of terrorism, and from 
sabotage or other subversive acts, accidents, or other causes of a 
similar nature.

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 
may be small entities: The operators of southbound tows, in a 3 by 5 
configuration, intending to transit through the RNA. This RNA will not 
have a significant economic impact on a substantial number of small 
entities because this rule will only remain in effect until a 
protection cell can be erected or until other recommendations are 
provided which reduce the risk of allisions with the Jefferson Street 
Bridge.
    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.

Assistance for Small Entities

    Under subsection 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to 
assist small entities in understanding the rule so that they can better 
evaluate its effects on them and participate in the rulemaking process. 
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).

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.

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 or more in any 
one year.

[[Page 64990]]

Though this rule will not result in such an expenditure, we do discuss 
the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference With Constitutionally Protected Property 
Rights.

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.

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.

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.

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.

Environment

    We have analyzed this rule under Commandant Instruction M16475.1D, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have concluded that there are no factors in this case that would limit 
the use of categorical exclusion under section 2.B.2 of the 
Instruction. Therefore, this rule is categorically excluded, under 
figure 2-1 paragraph (34)(g), of the instruction, from further 
environmental documentation because this rule is not expected to result 
in any significant environmental impact as described in NEPA. A final 
``Environmental Analysis Check List'' and a final ``Categorical 
Exclusion Determination'' are available in the docket where indicated 
under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Waterways.

0
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. 1226, 1231; 46 U.S.C. Chapter 701; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 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. Reinstate and revise temporary Sec.  165.T09-214 to read as follows:


Sec.  165.T09-214  Regulated Navigation Area; Des Plaines River, 
Joliet, Illinois

    (a) Regulated Navigation Area. The following waters are a Regulated 
Navigation Area (RNA): All portions of the Des Plaines River between 
mile 287.3 (McDonough St. Bridge) to mile 288.7 (Ruby Street Bridge).
    (b) Applicability. This section applies to operators of all 
southbound tows transiting beneath the Jefferson Street Bridge (mile 
287.9), Joliet, Illinois, with barge configurations of over 89 feet in 
overall width and more than 800 feet in length.
    (c) Effective dates. This section is effective from 8 a.m., May 11, 
2003, until March 1, 2004.
    (d) Regulation. (1) All southbound tows to which this section 
applies must use an assist tug when transiting through the RNA.
    (2) The general regulations contained in 33 CFR 165.13 apply to 
this section.
    (3) Deviation from this section is prohibited unless specifically 
authorized by the Commander, Ninth Coast Guard District or his 
designated representatives. Designated representatives include the 
Captain of the Port Chicago.

    Dated: November 10, 2003.
Ronald F. Silva,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 03-28801 Filed 11-13-03; 3:54 pm]
BILLING CODE 4910-15-P