[Federal Register Volume 78, Number 94 (Wednesday, May 15, 2013)]
[Rules and Regulations]
[Pages 28495-28497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11525]



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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0334]
RIN 1625-AA00


Safety Zone; Safety Precautions to Protect the Public from the 
Effects of a Potential Catastrophic Failure of the Marseilles Dam; 
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 231.0 to Mile Marker 271.4. This zone 
is intended to place restrictions on vessels due to the salvage and 
port recovery operations in this part of the Illinois River, and the 
potential structural concerns regarding the Marseilles Dam. This safety 
zone is necessary to protect the general public, vessels, and tows from 
the hazards associated with salvage and port recovery operations and 
the potential catastrophic failure of the Marseilles Dam.

DATES: This rule will be enforced with actual notice from April 29, 
2013, until May 15, 2013. This rule is effective in the Code of Federal 
Regulations from May 15, 2013 until June 30, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
[USCG-2013-0334]. To view 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.

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 temporary safety zone on the Illinois 
River from Mile Marker 187.2 to Mile Marker 285.9 (see docket for this 
regulation). The safety zone restricted recreational and commercial 
vessel transits in the zone without the permission of the Captain of 
the Port Lake Michigan. That safety zone has been effective and 
enforced since April 18, 2013, and expires on April 30, 2013. Because 
of the emergent nature of the flooding, the Coast Guard did not solicit 
comments before establishing this temporary safety zone.
    On April 29, 2013, in order to facilitate commerce and in 
consideration of salvage operations around the Marseilles Dam, the 
Coast Guard established a temporary safety zone (USCG-2013-0323) that 
authorized commercial vessels to transit the Illinois River except from 
Mile Marker 244 to Mile Marker 252. Recreational vessels were 
prohibited from Mile Marker 187.2 to 285.9. Because of the emergent 
nature of the flooding, the Coast Guard also did not solicit comments 
prior to establishing this temporary safety zone.
    Now, the Coast Guard is issuing a third 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 salvage 
and port recovery operations in the vicinity of the Marseilles Lock and 
Dam and the potential for catastrophic failure of the Marseilles Dam. 
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 the potential catastrophic 
failure of the Marseilles Dam.
    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 resulted in dangerously high waters within the Illinois 
River, bringing excessive debris, rapidly-flowing water, and 
complicating vessel navigation. These high and rapidly-moving waters 
also threatened to damage critical infrastructure including river 
levees.
    As a result of these conditions, the Coast Guard established the 
two previously-mentioned safety zones on the Illinois River from Mile 
Marker 187.2 to Mile Marker 285.9. Since April 18, 2013, 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 is 
being conducted.
    On April 29, 2013, the U.S. Army Corps of Engineers released 
Navigation Notice IW 13-12 saying that Dresden Lock and Starved Rock 
Lock will not lock vessel traffic into the area between the locks with 
the exception of those vessels assisting in the salvage operation or 
the dam recovery efforts at Marseilles Dam. Currently, both commercial 
and recreational vessels remain within portions of the Illinois River, 
which could either be affected by the failure of the Marseilles Dam or 
could impede the salvage operations at work there. This affected area 
is determined to be all waters of the Illinois River between the 
Starved Rock Lock and Dam (Mile marker 231.0) and the Dresden Lock and 
Dam (Mile Marker 271.4).
    In an effort to ensure the safety of all vessels that might be 
either affected by the failure of the Marseilles Dam or could impede 
the salvage operations being conducted, the Captain of the Port is 
issuing this temporary final rule.

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Enforcement of the restrictions in the prior temporary safety zone 
(USCG-2013-0323) will be suspended.
    The Captain of the Port, 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, Lake Michigan, has determined that a 
safety zone is necessary to mitigate the aforementioned safety risks. 
This rule establishes a safety zone that encompasses all waters of the 
Illinois River from the gates of the Dresden Lock and Dam at Mile 
Marker 271.4 to the gates of the Starved Rock Lock and Dam at Mile 
Marker 231.0. This rule will place restrictions on certain vessels 
entering, transiting, moving within, or departing the waters within the 
safety zone. Inbound vessels are directed to contact the Army Corps of 
Engineers; vessels transiting within or departing from this zone are 
directed to contact the Captain of the Port, Lake Michigan 
Representative. This rule is effective and will be enforced from April 
29, 2013, until June 30, 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, 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, Lake 
Michigan, or his or her designated on-scene representative. The Captain 
of the Port, 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, 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 portions of the Illinois River during the time 
that this zone is enforced.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: This 
safety zone would be effective and thus subject to enforcement, for two 
months. Traffic may be allowed to pass through the zone with the 
permission of the Captain of the Port. The Captain of the Port can be 
reached via VHF channel 16. Before the enforcement of the zone, we 
would issue local Broadcast Notice to Mariners.

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 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 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 will not call for a 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

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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.T09-0334 to read as follows:


Sec.  165.T09-0334  Safety Zone; Safety precautions to protect the 
public from the effects of a potential catastrophic failure of the 
Marseilles Dam; Illinois River.

    (a) Location. All waters of the Illinois River from the gates of 
the Dresden Lock and Dam at Mile Marker 271.4 to the gates of the 
Starved Rock Lock and Dam at Mile Marker 231.0.
    (b) Effective and Enforcement Period. This safety zone will be 
effective and enforced from April 29, 2013, until June 30, 2013.
    (c) Regulations. (1) All vessels permitted to enter or remain in 
the safety zone are prohibited from laying up on levees.
    (2) All vessels are prohibited from entering, transiting, or 
anchoring within this safety zone unless authorized by the Captain of 
the Port, Lake Michigan, or his designated representative.
    (3) Any vessel located within the safety zone will be authorized to 
transit within or exit the safety zone only by permission of the 
Captain of the Port, Lake Michigan or his designated representative.
    (d) Exceptions. (1) All vessels intending to transit into the 
safety zone are authorized to do so at the discretion of the Dresden 
and Starved Rock Lockmasters. The Dresden Lockmaster may be contacted 
by calling 815-942-0840. The Starved Rock Lockmaster may be contacted 
by calling 815-667-4114. Vessels underway in the Dresden or Starved 
Rock Pool should immediately seek a safe mooring or departure from the 
affected pools. Vessels moored within the Starved Rock or Dresden Pool 
that intend to depart or transit within the pool shall contact The 
Captain of the Port, Lake Michigan or his on-scene representative via 
VHF Channel 16, or by calling (630) 336-0300. Vessel operators given 
permission to enter, operate, or depart from the safety zone must 
comply with all directions given to them by the Captain of the Port, 
Lake Michigan, or his on-scene representative. The ``on-scene 
representative'' of the Captain of the Port, Lake Michigan is any Coast 
Guard commissioned, warrant or petty officer who has been designated by 
the Captain of the Port, Lake Michigan to act on his behalf.

    Dated: April 29, 2013.
M.W. Sibley,
Captain, U.S. Coast Guard, Captain of the Port, Lake Michigan.
[FR Doc. 2013-11525 Filed 5-14-13; 8:45 am]
BILLING CODE 9110-04-P