[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