[Federal Register Volume 78, Number 110 (Friday, June 7, 2013)]
[Rules and Regulations]
[Pages 34255-34258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13521]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0344]
RIN 1625-AA11


Regulated Navigation Area; Vessel Traffic in Vicinity of 
Marseilles Dam; Illinois River

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area 
(RNA) on the Illinois River. This Temporary Final Rule stipulates 
operational requirements and places navigational and operational 
restrictions on all vessels transiting the Illinois River from Mile 
Marker 240.0 to Mile Marker 271.4. This RNA is necessary to protect the 
general public, vessels, and tows from the hazards associated with 
obstructions in the Marseilles Lock canal, recovery efforts related to 
the restoration of the Marseilles Dam, and salvage operations being 
conducted in its vicinity.

DATES: This rule will be enforced with actual notice from May 4, 2013, 
until June 7, 2013. This rule is effective in the Code of Federal 
Regulations from June 7, 2013 until June 30, 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2013-0344. 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 
temporary rule, contact or email MST1 Joseph McCollum, U.S. Coast Guard 
Sector Lake Michigan, at 414-747-7148 or [email protected]. If 
you have questions on viewing 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
RNA Regulated Navigation Area

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 (USCG-2013-0299). The 
safety zone restricted recreational and commercial vessel transit in 
the zone without the permission of the Captain of the Port Lake 
Michigan. The safety zone was effective and enforced from April 18 to 
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 26, 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.
    On April 29, 2013, the Coast Guard issued a third TFR that 
established a safety zone from Mile Marker 231.0 to Mile Marker 271.4 
on the Illinois River (USCG-2013-0334). This safety zone restricted 
vessel traffic within the portion of the Illinois River deemed to be 
affected by both salvage operations and the potential for structural 
failure at the Marseilles Dam.
    Now, the Coast Guard is issuing this 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 and 
contrary to the public interest. The Coast Guard is issuing this rule 
in response to an immediate and emergency situation that involves 
salvage and port recovery operations in the vicinity of the Marseilles 
Lock and Dam. Delaying the effective date of this rule to wait for a 
comment period to run would be both impracticable and contrary to the 
public interest 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 salvage and port recovery operations 
in the vicinity of the Marseilles Lock and Dam.
    Although the Coast Guard is issuing this rule without prior notice 
and opportunity to comment, the Coast Guard consulted with towing 
vessel industry stakeholders to help determine the tow restrictions and 
operating parameters in this RNA.
    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 RNAs 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; Pub. L. 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

[[Page 34256]]

damage critical infrastructure including river levees.
    On 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 structural surveys of the dam are being conducted.
    On April 29, 2013, the U.S. Army Corps of Engineers released 
Navigation Notice IW 13-12 declaring lock restrictions for vessel 
traffic between mile markers 231.0 to 271.4 except for 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.
    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 Ninth District Commander is 
issuing this rule. Once this RNA is put into effect, the enforcement of 
the temporary safety zones discussed previously will be suspended.
    The Coast Guard's Ninth District Commander has established the 
restrictions, stipulations, and directions 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 the Final Rule

    The Coast Guard's Ninth District Commander has determined that an 
RNA is necessary to mitigate the aforementioned safety risks. Thus, 
this rule establishes an RNA that encompasses all waters of the 
Illinois River from the gates of the Dresden Lock and Dam at Mile 
Marker 271.4 to Mile Marker 240.0. This rule will place restrictions on 
vessels entering, transiting, moving within, or departing the waters 
within the regulated navigation area.
    In order to ensure the safety of those vessels and persons 
transiting the portion of the Illinois River that could be affected by 
obstructions in the waterway or salvage operations, restrictions will 
be in place from the gates of the Dresden Lock and Dam at Mile Marker 
271.4 to Mile Marker 240.0 so that towing vessels must configure tows 
within designated parameters. Vessels may not transit under certain 
ambient weather and water conditions and without a minimum of 240 
horsepower for every barge in the tow and an assist tug present. Also, 
towing vessels are not authorized to break up tows within certain 
portions of the River. Furthermore, vessels in transit must contact the 
Ninth District Commander's on-scene representative in order to proceed 
through the Marseilles Lock and Dam. This rule is effective and will be 
enforced from May 4, 2013, until June 30, 2013.
    The Ninth Coast Guard District Commander will notify the public 
that this RNA is being enforced by all appropriate means, including 
publication in the Federal Register, 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 
Ninth District Commander, the Captain of the Port Lake Michigan, or 
designated on-scene representative. Entry into, transiting, or 
anchoring within the RNA is prohibited unless authorized by the Ninth 
District Commander, the Captain of the Port Lake Michigan, or a 
designated on-scene representative. The Ninth District Commander, the 
Captain of the Port Lake Michigan, and the designated on-scene 
representative may be contacted via VHF Channel 16, at (630) 336-0300, 
or by contacting the Coast Guard Sector Lake Michigan Command Center at 
(414) 747-7182.

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on these statutes and 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 those Orders. 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 regulated navigation area created by this 
rule will be limited in scope and enforced for just two months. Under 
certain conditions, moreover, vessels may still transit through the 
regulated navigation area when permitted by the Ninth District 
Commander.

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 
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 or operators of vessels intending to 
transit or anchor in portions of the Illinois River during the time 
that this zone is enforced. This RNA will not have a significant 
economic impact on a substantial number of small entities for the 
following reasons: this RNA will be effective, and thus subject to 
enforcement, for just two months. Traffic may be allowed to pass 
through the RNA with the appropriate authority. Before the enforcement 
of the zone, the Coast Guard will 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 the 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

[[Page 34257]]

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. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

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

8. 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.

9. 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.

10. Protection of Children from Environmental Health Risks

    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.

11. 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.

12. 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.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. 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 regulated 
navigation area, and, therefore it is categorically excluded from 
further review under paragraph 34(g) of Figure 2-1 of the Commandant 
Instruction. 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 parts 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. Chapters 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.T09-0344 to read as follows:


Sec.  165.T09-0344  Regulated Navigation Area; Vessel Traffic in 
vicinity of 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 Mile Marker 240.0.
    (b) Effective and Enforcement Period. This rule is effective and 
will be enforced from May 4, 2013, to June 30, 2013.
    (c) Regulations. (1) All vessels are prohibited from entering, 
transiting, or anchoring within this regulated navigation area (RNA) 
unless authorized by the Ninth District Commander, the Captain of the 
Port Lake Michigan, or a designated representative at (630) 336-0300.
    (2) Vessels transiting within the RNA with tow must have:
    (i) A minimum of 240 horsepower for every barge in the tow.
    (ii) A minimum of 1000 feet of visibility.
    (iii) An assist tug arranged for passage past the sunken barge at 
the east entrance to the Marseilles Lock Canal.
    (iv) Tow configurations made out to no more than 2 barges wide and 
4 barges long.
    (v) Tow dimensions of less than 70 feet in width and 800 feet in 
length. These dimensions do not include the towing vessel.
    (vi) Make way with at least 2 mph speed of advance for the entire 
transit from Mile Marker 246 to Mile Marker 250.
    (3) Vessels transiting the RNA with tow are prohibited from 
breaking tows between Mile Marker 240.6 to Mile Marker 244.4 and 
between Mile Marker 246 to Mile Marker 250.
    (4) Vessels transiting the RNA are prohibited from making way when 
under the following conditions:
    (i) Wind speeds exceeding 25 mph.
    (ii) The flow rate of the Illinois River at the Marseilles Dam 
exceeds 23,000 CFS.

[[Page 34258]]

    (5) Vessels must contact the Ninth District Commander's on-scene 
representative at (630) 336-0300 prior to processing through Lock and 
Dams within the RNA as follows:
    (i) Northbound vessels must contact the Ninth District Commander's 
on-scene representative at (630) 336-0300 1 hour prior to anticipated 
lockage at Marseilles Lock and Dam. A secondary contact to the Ninth 
District Commander's on-scene representative must be made prior to Mile 
Marker 240.6 to obtain a lockage authorization code.
    (ii) Southbound vessels must contact the Ninth District Commander's 
on-scene representative at (630) 336-0300 1 hour prior to anticipated 
lockage at Marseilles Lock and Dam. A secondary contact to the Ninth 
District Commander's on-scene representative must be made prior to Mile 
Marker 250 to obtain a lockage authorization code.
    (6) Vessel operators given permission to enter, operate, or transit 
within the regulated navigations area must comply with all directions 
given to them by the Ninth District Commander, Captain of the Port, 
Lake Michigan, or a designated on-scene representative. The ``on-scene 
representative'' of the Ninth District Commander will be standing watch 
at the Marseilles Lock and is any Coast Guard commissioned, warrant or 
petty officer who has been designated by the Ninth District Commander 
to act on his behalf.
    (d) Exceptions. (1) Vessels with tow transiting northbound through 
the RNA may break their tow beyond Mile Marker 250.
    (2) Vessels with tow transiting southbound through the RNA may 
break their tow beyond Mile Marker 240.6.
    (e) Exemptions. Public vessels, defined in 46 USC 2101(24) as 
vessels that are owned, or demise chartered, and operated by the United 
States Governemnt or a government of a foreign country; and are not 
engaged in commercial service, are exempt from the requirements in this 
section.
    (f) Waiver. For any vessel, the Ninth District Commander or the 
Captain of the Port Lake Michigan may waive the requirements of this 
section, upon finding that operational conditions or other 
circumstances are such that application of this section is unnecessary 
or impractical for the purposes of public or environmental safety.
    (g) Notification. In keeping with 33 CFR 165.7(a), the Ninth 
District Commander will notify the public of the enforcement of this 
RNA by all appropriate means, including publication in the Federal 
Register. Such means of notification may also include, but are not 
limited to, Broadcast Notice to Mariners or Local Notice to Mariners.

    Dated: May 3, 2013.
M.N. Parks,
Rear Admiral, U. S. Coast Guard Commander, Ninth Coast Guard District.
[FR Doc. 2013-13521 Filed 6-6-13; 8:45 am]
BILLING CODE 9110-04-P