[Federal Register Volume 78, Number 90 (Thursday, May 9, 2013)]
[Rules and Regulations]
[Pages 27033-27035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-10957]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0323]
RIN 1625-AA00


Safety Zone; High Water Conditions; Illinois River

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone on the 
Illinois River from Mile Marker 187.2 to Mile Marker 285.9. This zone 
is intended to place restrictions on vessels due to current extreme 
high-water conditions. This safety zone is necessary to protect the 
general public, levee systems, vessels, and tows from the hazards 
associated with flood waters and potential catastrophic failure of the 
Marseilles Dam.

DATES: This rule will be enforced with actual notice from April 26, 
2013, until May 9, 2013. This rule is effective in the Code of Federal 
Regulations from May 9, 2013 until May 31, 2013.

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-2013-0323 and are available online at 
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. and 3 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
contact MST1 Joseph McCollum, Prevention Department, Coast Guard Sector 
Lake Michigan, Milwaukee, WI at (414) 747-7148 or by email 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

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
TFR Temporary Final Rule

A. Regulatory History and Information

    On April 18, 2013, in light of dangerously high water conditions, 
the Coast Guard established a safety zone on the Illinois River from 
Mile Marker 187.2 to Mile Marker 285.9 (see USCG-2013-0323 docket for a 
copy of the previous regulation). The safety zone restricted 
recreational and commercial vessel transits in the zone without the 
permission of the Captain of the Port Lake Michigan. The safety zone 
has been effective and enforced since April 18, 2013 and expires on 
April 30, 2013.
    The Coast Guard is issuing this temporary final rule 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. The 
Coast Guard is issuing this rule in response to an immediate and 
emergency situation which involves river flooding--an act of nature. 
Thus, delaying the effective date of this rule to wait for a comment 
period to run would be impracticable because it would inhibit the Coast 
Guard's ability to protect persons and vessels from the hazards, which 
are discussed further below, associated with extreme high water on the 
Illinois River.
    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 in 
the preceding paragraph, waiting for 30 day notice period to run would 
be impracticable and contrary to the public interest.

B. Basis and Purpose

    The legal basis for the rule is the Coast Guard's authority to 
establish regulated navigation areas and limited access areas: 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, 160.5; Public Law 107-295, 116 Stat. 2064; 
Department of Homeland Security Delegation No. 0170.1.
    Heavy and extended periods of rain during the first half of the 
month of April have resulted in dangerously high

[[Page 27034]]

waters within the Illinois River. High-water conditions are hindering 
navigation due to excessive debris and rapidly-flowing water. Current 
high-water conditions also threaten to damage critical infrastructure 
including river levees.
    On April 18, 2013, as a result of these conditions, the Coast Guard 
established a safety zone on the Illinois River from Mile Marker 187.2 
to Mile Marker 285.9 restricting recreational vessel transit and 
commercial vessel fleeting in the safety zone without the permission of 
the Captain of the Port. Since April 18, seven barges broke loose from 
their tow during an approach to the Marseilles Lock canal and lodged 
against the Marseilles Dam. Salvage operations are underway to recover 
the barges and a structural survey of the dam needs to be completed. In 
order to protect vessel traffic above the dam and ensure that salvage 
operations remain unimpeded a safety zone between mile marker 244 and 
mile marker 252 is being enforced to prohibit all vessels that are not 
directly engaged in the salvage operations.
    In response to these changes and to allow commerce to resume on the 
river, the Captain of the Port is issuing this temporary final rule. 
Enforcement of the restrictions in the prior temporary safety zone will 
be suspended.
    The Captain of the Port, Sector Lake Michigan, has established the 
restrictions named within this regulation in response to the safety 
risks presented by the high water conditions, the potentially 
compromised dam, and ongoing salvage operations. The safety risks 
associated with these conditions include loss of vessel control, 
sinking, swamping, collisions, and allisions.

C. Discussion of Rule

    The Captain of the Port, Sector Lake Michigan, has determined that 
a safety zone is necessary to mitigate the aforementioned safety risks. 
Thus, this rule establishes a safety zone that encompasses all waters 
of the Illinois River from Mile Marker 187.2 to Mile Marker 285.9. This 
rule will place restrictions on certain vessels so that no recreational 
vessel may transit this portion of the Illinois River. Furthermore, 
this rule will prohibit commercial vessels from transiting an area of 
the safety zone in which salvage operations are being conducted except 
by permission of the Captain of the Port, Sector Lake Michigan. This 
rule is effective and will be enforced from April 26, 2013, until May 
31, 2013.
    The Captain of the Port Lake Michigan will notify the public that 
this safety zone is being enforced by all appropriate means to the 
affected segments of the public including publication in the Federal 
Register as practicable, in accordance with 33 CFR 165.7(a). Such means 
of notification may also include, but are not limited to Broadcast 
Notice to Mariners or Local Notice to Mariners.
    All persons and vessels shall comply with the instructions of the 
Captain of the Port, Sector Lake Michigan, or his or her designated on-
scene representative. Entry into, transiting, or anchoring within the 
safety zone is prohibited unless authorized by the Captain of the Port, 
Sector Lake Michigan, or his or her designated on-scene representative. 
The Captain of the Port, Sector Lake Michigan, or his or her designated 
on-scene representative may be contacted via VHF Channel 16 or by 
contacting the Coast Guard Sector Lake Michigan Command Center at (414) 
747-7182.

E. Regulatory Analysis

    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 that Order. 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 safety zone 
created by this rule will be relatively small and enforced for a 
relatively short amount of time. Also, this safety zone is designed to 
minimize its impact on navigable waters. Furthermore, the safety zone 
has been designed to allow vessels to transit unrestricted to portions 
of the waterways not affected by the safety zones. Thus, restrictions 
on vessel movements within that particular area are expected to be 
minimal. Under certain conditions, moreover, vessels may still transit 
through the safety zone when permitted by the Captain of the Port, 
Sector Lake Michigan. On the whole, the Coast Guard expects 
insignificant adverse impact to mariners from the activation of this 
safety zone.

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 
would 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 
intending to transit or anchor within the portions of the Illinois 
River to which this regulation applies.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: This 
rule will be enforced for a limited time during dangerous high-water 
conditions on the Illinois River. 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.

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 to that they can better evaluate 
its effects on them. If this 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 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

[[Page 27035]]

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 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 rule under that Order and determined 
that this rule 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 an 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 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 would not create an 
environmental risk to health or risk to safety that might 
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

    This action is not a ``significant energy action'' under Executive 
Order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

12. Technical Standards

    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 safety zone, and 
thus, paragraph 34(g) of figure 2-1 in Commandant Instruction M16475.lD 
applies.
    An environmental analysis checklist supporting this determination 
and a 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 record 
keeping 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. Add Sec.  165.T09-0323 to read as follows:


Sec.  165.T09-0323  Safety Zone; High Water Conditions, Illinois River.

    (a) Location. All waters of the Illinois River from Mile Marker 
187.2 to Mile Marker 285.9.
    (b) Effective Period. This safety zone will be effective and 
enforced from April 26, 2013, until May 31, 2013.
    (c) Regulations. (1) Recreational vessels are prohibited from 
entering, transiting, or anchoring within this safety zone unless 
authorized by the Captain of the Port, Sector Lake Michigan.
    (2) All vessels are prohibited from laying up on levees.
    (3) Commercial vessels are authorized to transit, anchor, and 
conduct operations within this safety zone except from Mile Marker 244 
to Mile Marker 252. Commercial vessels intending to transit this area 
must receive authorization from the Captain of the Port Sector Lake 
Michigan, or his designated representative. The Captain of the Port, 
Sector Lake Michigan or his on-scene representative may be contacted 
via VHF Channel 16, or by calling (630) 336-0300. Vessel operators 
given permission to enter or operate in the safety zone must comply 
with all directions given to them by the Captain of the Port, Sector 
Lake Michigan, or his on-scene representative. The ``on-scene 
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 behalf.

    Dated: April 26, 2013.
M.W. Sibley,
Captain, U.S. Coast Guard, Captain of the Port, Sector Lake Michigan.
[FR Doc. 2013-10957 Filed 5-8-13; 8:45 am]
BILLING CODE 9110-04-P