[Federal Register Volume 78, Number 135 (Monday, July 15, 2013)]
[Rules and Regulations]
[Pages 42012-42015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-16803]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-1108]
RIN 1625-AA11, 1625-AA00


Safety Zone and Regulated Navigation Area; Chicago Sanitary and 
Ship Canal, Romeoville, IL

AGENCY: Coast Guard, DHS.

ACTION: Interim rule with request for comments.

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SUMMARY: The Coast Guard is issuing this Interim Rule to address two 
omissions from the regulatory text of the Safety zone and Regulated 
Navigation Area in the Chicago Sanitary and Ship Canal, Romeoville, IL. 
These omissions include requirements for the regulated navigation area 
that vessels must be greater than twenty feet in length and must not be 
a personal or human powered watercraft of any kind (e.g. jet skis, wave 
runners, kayaks, row boats, etc.). This revision is intended to make 
the regulatory text consistent with the discussion of the rule as 
originally published in the Federal Register on December 12, 2011.

DATES: This rule will be enforced with actual notice from June 19, 
2013, until July 15, 2013. This rule is effective in the Code of 
Federal Regulations on July 15, 2013. Comments and related material 
must be received by the Coast Guard on or before August 14, 2013.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-1108 and are available online 
by going to www.regulations.gov, inserting USCG-2011-1108 in the 
``SEARCH'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, 
call CDR Scott Anderson, U.S. Coast Guard, Ninth District Prevention 
Department, Cleveland, OH, at (216) 902-6049 or email him 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

ACOE U.S. Army Corps of Engineers
CSSC Chicago Sanitary and Ship Canal
CFR Code of Federal Regulations
DHS Department of Homeland Security
IR Interim Rule
NPRM Notice of Proposed Rulemaking
RNA Regulated Navigation Area

A. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided.

1. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking, indicate the specific section of this document to which 
each comment applies, and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online (via 
http://www.regulations.gov) or by fax, mail, or hand delivery, but 
please use only one of these means. If you submit a comment online via 
www.regulations.gov, it will be considered received by the Coast Guard 
when the comment is successfully transmitted; a comment submitted via 
fax, hand delivery, or mail, will be considered as having been received 
by the Coast Guard when the comment is received at the Docket 
Management Facility. We recommend that you include your name and a 
mailing address, an email address, or a telephone number in the body of 
your document so that we can contact you if we have questions regarding 
your submission.
    To submit your comment online, go to http://www.regulations.gov, 
type the docket number in the ``SEARCH'' box and click ``SEARCH.'' 
Click on ``Submit a Comment'' on the line associated with this 
rulemaking.
    If you submit your comments by mail or hand delivery, submit them 
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit comments by mail and would 
like to

[[Page 42013]]

know that they reached the Facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change the rule 
based on your comments.

2. Viewing Comments and Documents

    To view comments, as well as 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.

3. Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

4. Public Meeting

    We do not now plan to hold a public meeting. You may submit a 
request for one using one of the four methods specified under 
ADDRESSES. Please explain why you believe a public meeting would be 
beneficial. If we determine that one would aid this rulemaking, we will 
hold one at a time and place announced by a later notice in the FR.

B. Regulatory History and Information

    Since 2005, the Coast Guard has established and enforced a series 
of safety zones and RNAs on the CSSC to address safety risks associated 
with the operation of the ACOE's electric dispersal fields. A summary 
of this regulatory history can be found in the background section of 
the final rule establishing the current version of 33 CFR 165.923 (76 
FR 77121). Notably, the Coast Guard published a temporary final rule 
with request for comments in the Federal Register on December 2, 2010 
(75 FR 75145). This rule established RNA restrictions for the CSSC, 
which included requirements that (1) vessels must be greater than 
twenty feet in length and (2) must not be personal or human powered 
watercraft of any kind. Although these requirements were adopted and 
discussed in 76 FR 77121 (see Discussion of Rule), they were omitted 
from the regulatory text of 33 CFR 165.923. To correct this discrepancy 
and conform the regulation to established enforcement practice of the 
RNA, the Coast Guard is issuing this IR.
    The Coast Guard is issuing this IR 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 
is unnecessary. The fish barrier remains active and publishing an NPRM 
and accepting comments prior to the issuance of an effective rule is 
impracticable because it inhibits the Coast Guard's ability to protect 
vessels less than 20 feet in length and personal watercrafts from harm. 
The electrified barriers pose a significant threat of harm to vessels 
less than 20 feet in length and personal watercrafts.
    Additionally, the RNA restrictions that (1) vessels must be greater 
than twenty feet in length and (2) must not be personal or human 
powered watercraft of any kind were subject to a 30 day comment period 
in a temporary interim rule establishing the RNA for the CSSC (75 FR 
75145), which published on December 2, 2010. The Coast Guard received 
no comments on portions relating to vessels less than 20 feet or 
personal watercrafts. Moreover, based on the Coast Guard's 
interpretation of that temporary interim rule, as discussed in its 
preamble, vessels less than 20 feet and personal watercraft are not 
allowed to travel through the barrier. Because the restriction on 
vessels less than 20 feet and personal watercraft has already been the 
subject public comment and the Coast Guard has interpreted the 
temporary interim rule published at 75 FR 75145 to exclude these 
vessels, prior notice and comment for this interim rule is unnecessary.
    Although the Coast Guard finds that good cause exists not to 
publish an NPRM, comments from the public as to the addition of this 
provision to the regulation text are welcomed. The Coast Guard will 
consider comments prior to the finalization of this rule. Such comments 
may be submitted by following the instruction in the Public 
Participation and Request for Comments section.
    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 
above about not publishing an NPRM, the Coast Guard finds that waiting 
for a 30 day notice period to run would be unnecessary, impracticable, 
and contrary to the public interest.

C. Basis and Purpose

    In response to the threat of Asian carp reaching the Great Lakes 
and devastating the Great Lakes commercial and sport fishing 
industries, the ACOE began in 2002 the operation of a series of 
electrical barriers in the CSSC. These barriers are located 
approximately 30 miles from Lake Michigan and create an electric field 
in the water by pulsing low voltage DC current through steel cables 
secured to the bottom of the canal. Currently, three electrical 
barriers are in operation. These barriers are meant to prevent and 
reduce the dispersal of Asian carp in the CSSC.
    The Coast Guard's Ninth District Commander has determined that the 
electric current radiated from the electric barriers poses certain 
safety risks to commercial vessels, recreational boaters, and people on 
or in portions of the CSSC in the vicinity of the barriers. 
Consequently, the Coast Guard's Ninth District Commander has concluded 
that an RNA is necessary to mitigate such risks.
    In addition to safety concerns about electric current in the water, 
concerns have also been raised about the potential transport of carp 
eggs, gametes, and juvenile fish in bilge, ballast, or other non-
potable water from south of the barriers to waters north of the 
barriers. To address these concerns, the Coast Guard's Ninth District 
Commander has determined that a safety zone is necessary to mitigate 
the threat of such transportation.
    For a fuller discussion on the history of the electrical dispersal 
barriers and the potential transportation of eggs, gametes, and 
juvenile fish across the barriers see 70 FR 76694, 75 FR 754, and 75 FR 
75145, which were published on December 28, 2005, January 6, 2010, and 
December 2, 2010 respectively.
    To address the aforesaid safety risks, the Coast Guard's Ninth 
District Commander, as discussed in the Regulatory History and 
Information section, established a series of safety

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zones and RNAs from 2005 to 2010. Most recently, on December 1, 2011, 
the Coast Guard's Ninth District Commander established a permanent RNA 
on all waters located adjacent to, and over, the electrical dispersal 
barriers on the CSSC between mile marker 295.5 and mile marker 297.2 
(76 FR 77121). In the same rule-making, the Coast Guard's Ninth 
District Commander also established a permanent safety zone over a 
smaller portion of the same waterway between mile marker 296.1 and mile 
marker 296.7. This rule-making represents the current version of 33 CFR 
165.923.

D. Discussion of Rule

    This IR only addresses two requirements in the RNA of 33 CFR 
165.923, which although included in the Discussion of Rule of 76 FR 
77121 were omitted from the regulatory text of 33 CFR 165.923. As 
previously noted, these requirements are that (1) vessels must be 
greater than twenty feet in length and (2) must not be a personal or 
human powered watercraft of any kind (i.e. jet skis, wave runners, 
kayaks, row boats, etc.). These requirements, as with all others 
included in the 33 CFR 165.923, are necessary for safe navigation of 
the RNA and to ensure the safety of vessels and their personnel as well 
as the public in general. The requirements are also necessary to 
protect against the harms presented by a potential invasion of Asian 
carp in Lake Michigan.
    Deviation from this final rule is prohibited unless specifically 
authorized by the Coast Guard's Ninth District Commander or his or her 
designated representatives. For the life of this RNA, the Coast Guard's 
Ninth District Commander designates as his or her representatives the 
Captain of the Port, Sector Lake Michigan, and the Commanding Officer, 
Marine Safety Unit Chicago.
    The safety zone and RNA will be enforced at all times. If, however, 
enforcement of the safety zone or RNA is at any time suspended, the 
Coast Guard's Ninth District Commander or his or her designated 
representatives will cause notice of the suspension to be made by all 
appropriate means to effect the widest publicity among the affected 
segments of the public.

E. 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 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 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 two RNA restrictions are limited in scope 
to vessels under twenty feet in length and personal watercraft of any 
kind.

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 under 20 feet and 
personal or human powered watercraft intending to transit the RNA 
during enforcement. This RNA will not have a significant economic 
impact on a substantial number of small entities for the following 
reasons: The RNA restrictions in this rule are limited in scope of 
vessels under 20 feet and personal or human powered watercraft.

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 that they can better evaluate 
its effects on them and participate in the rulemaking process.
    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, 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 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 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.

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 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

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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 does not create an 
environmental risk to health or risk to safety that may 
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

    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.

12. 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.

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 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. We seek any comments or 
information that may lead to the discovery of a significant 
environmental impact from this rule.

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, 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. Revise Sec.  165.923(b) to read as follows:


Sec.  165.923  Safety Zone and Regulated Navigation Area, Chicago 
Sanitary and Ship Canal, Romeoville, IL.

* * * * *
    (b) Regulated Navigation Area. (1) The following is a regulated 
navigation area (RNA): all waters of the Chicago Sanitary and Ship 
Canal, Romeoville, IL located between mile marker 295.5 and mile marker 
297.2.
    (2) Regulations. (i) The general regulations contained in 33 CFR 
165.13 apply.
    (ii) Vessels that comply with the following restrictions are 
permitted to transit the RNA:
    (A) Vessels must be greater than 20 feet in length.
    (B) Vessels must not be a personal or human powered watercraft 
(i.e. jet skis, wave runners, kayaks, row boats, etc.).
    (C) All up-bound and down-bound barge tows that consist of barges 
carrying flammable liquid cargos (Grade A through C, flashpoint below 
140 degrees Fahrenheit, or heated to within 15 degrees Fahrenheit of 
flash point) must engage the services of a bow boat at all times until 
the entire tow is clear of the RNA.
    (D) Vessels engaged in commercial service, as defined in 46 U.S.C. 
2101(5), may not pass (meet or overtake) in the RNA and must make a 
SECURITE call when approaching the RNA to announce intentions and work 
out passing arrangements.
    (E) Commercial tows transiting the RNA must be made up with only 
wire rope to ensure electrical connectivity between all segments of the 
tow.
    (F) All vessels are prohibited from loitering in the RNA.
    (G) Vessels may enter the RNA for the sole purpose of transiting to 
the other side and must maintain headway throughout the transit. All 
vessels and persons are prohibited from dredging, laying cable, 
dragging, fishing, conducting salvage operations, or any other 
activity, which could disturb the bottom of the RNA.
    (H) Except for law enforcement and emergency response personnel, 
all personnel on vessels transiting the RNA should remain inside the 
cabin, or as inboard as practicable. If personnel must be on open 
decks, they must wear a Coast Guard approved personal flotation device.
    (I) Vessels may not moor or lay up on the right or left descending 
banks of the RNA.
    (J) Towboats may not make or break tows if any portion of the 
towboat or tow is located in the RNA.
    (K) Persons on board any vessel transiting this RNA in accordance 
with this rule or otherwise are advised they do so at their own risk.
* * * * *

    Dated: June 19, 2013.
M.N. Parks,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2013-16803 Filed 7-12-13; 8:45 am]
BILLING CODE 9110-04-P