[Federal Register Volume 79, Number 221 (Monday, November 17, 2014)]
[Rules and Regulations]
[Pages 68366-68370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27168]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2014-0592]
RIN 1625-AA11


Regulated Navigation Area, Lake Michigan; Chicago Harbor Lock, 
Chicago, IL to Calumet Harbor, Chicago, IL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a Regulated Navigation Area 
(RNA) for the waters of Lake Michigan within 5 nautical miles from 
shore from the Chicago Harbor Lock, Chicago, Illinois to Calumet 
Harbor, Chicago, Illinois. This RNA is intended to allow barges to 
transit on an alternate route on a portion of Lake Michigan due to the 
temporary closure of the Thomas J. O'Brien Lock on RM 326.5 on the 
Calumet River. This RNA is necessary to ensure vessel safety and 
facilitate commerce.

DATES: This rule is effective from November 17, 2014 until March 31, 
2015. This rule has been enforced with

[[Page 68367]]

actual notice from November 1, 2014 until November 17, 2014.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2014-0592. 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 John Ng, U.S. Coast Guard Marine 
Safety Unit Chicago, at 630-986-2155 or [email protected]. If you have 
questions on viewing the docket, call Cheryl Collins, Program Manager, 
Docket Operations, telephone 1-800-647-5527.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

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

A. Regulatory History and Information

    On September 4, 2014, the Coast Guard published an NPRM in the 
Federal Register entitled ``Regulated Navigation Area; Lake Michigan, 
Chicago Harbor Lock, Chicago, IL to Calumet Harbor, Chicago, IL'' (79 
FR 52591). We received two comments in response to the NRPM. Those 
comments are addressed below. No public meeting was requested, and none 
was held.
    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. On June 4, 2014, the Coast Guard, 
industry stakeholders, and the Army Corps of Engineers discussed the 
closure of the Thomas J. O'Brien Lock and alternatives for affected 
barge traffic. The need for an RNA arose out of these discussions, and 
the Coast Guard began the rulemaking process for a temporary RNA. 
However, there was insufficient time for both notice and comment and 
delaying the effective date of the rule. Waiting 30 days after 
publication to make the rule effective would be impracticable and 
contrary to the public interest because it would not allow the RNA to 
be enforced starting after November 1, 2014, when it is needed to 
ensure vessel safety and facilitate commerce.

B. Basis and Purpose

    The legal basis for this rule is the Coast Guard's authority to 
establish RNAs and limited access areas: 33 U.S.C. 1231; 46 U.S.C. 
Chapter 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 
and 160.5; Department of Homeland Security Delegation No. 0170.1.
    Between November 3, 2014, and March 6, 2015, the United States Army 
Corps of Engineers anticipates closing the Thomas J. O'Brien Lock for 
two 47-day periods in order to perform maintenance on the lock. The 
Thomas J. O'Brien Lock closures present a significant challenge to the 
barge industry and an alternate route is necessary in order to sustain 
commerce. Further, safe operating requirements for this temporary 
alternate route are necessary to ensure safety of transiting barge 
traffic.

C. Discussion of Comments, Changes and the Final Rule

    We received two comments in response to the NPRM. The first comment 
indicated that the environmental analysis for the proposed rule lacked 
information about the environmental impact of barge traffic. This 
comment recommends the inclusion of relevant studies, if any, on the 
impact of barge traffic on the environment in the proposed rule's 
environmental analysis.
    We have made no change to the final rule in light of this comment. 
The environmental checklist and categorical exclusion, included in the 
docket, address the environmental analysis of this rule. In short, we 
determined after a thorough review, that the application of U.S. Coast 
Guard categorical exclusion 34(g) is appropriate in this case. Having 
made this determination, no further environmental analysis and 
documentation is required. However, as we note later on, we welcome any 
comments or information that may lead to discovery of a significant 
environmental impact from this rule.
    A second comment voiced support for the temporary RNA as a 
practical solution for commercial traffic during the closure of the 
Thomas J. O'Brien Lock. We made no change to the final rule in light of 
this comment.
    Further, we have made editorial changes to the regulatory text of 
the rule for clarification. As to the first change, we've inserted the 
phrase ``within the effective period'' under paragraph 2(b) of the 
regulatory text. This phrase explains that any change in the 
enforcement period for which we give notice will occur within the 
effective period of the rule (November 1, 2014 to March 31, 2015). We 
further deleted the phrase ``In accordance with 46 CFR 45.171'' and 
added the word ``same'' under paragraph 2(c)(1) to clarify that only 
certain provisions of 46 CFR 45.171 are adopted for purposes of this 
rule; these provisions include the ``same'' requirements for voyages 
between Burns Harbor, Indiana and Calumet Harbor, Chicago, Illinois as 
reflected in Table 45.171.

D. Discussion of the Final Rule

    This RNA is necessary to facilitate commerce and establish safe 
operating requirements for this temporary alternate route. Thus, this 
rule establishes an RNA on the waters of Lake Michigan, between Chicago 
Harbor Lock, Chicago, Illinois and Calumet Harbor, Chicago, Illinois, 
within 5 nautical miles from shore.
    This RNA will be effective and enforced from November 1, 2014, 
through March 31, 2015. The effective period for this RNA is broader 
than the anticipated closure dates of the Thomas J. O'Brien Lock and 
Dam to account for unexpected changes in schedule. In the event of a 
change in the enforcement dates and times, the Ninth District Commander 
will provide notice to the public by issuing a Notice of Enforcement 
for publication in the Federal Register, and announcing a Broadcast 
Notice to Mariners.
    Inspected and uninspected river barges transiting this RNA need to 
operate in accordance with temporary 33 CFR 165.T09-0592 described 
below:

Uninspected Dry Cargo Barges

    Unmanned dry cargo river barges transiting between Chicago Harbor 
Lock, Chicago, Illinois and Calumet Harbor, Chicago, Illinois must meet 
the same requirements for voyages between Burns Harbor, Indiana and 
Calumet Harbor, Chicago, Illinois outlined in Table 45.171 of 46 CFR 
45.171, as follows:
     Load line requirement: Conditionally exempted from load 
line assignment.
     Where to register/apply: Exempted barges must be 
registered with the USCG Marine Safety Unit Chicago, 555A Plainfield 
Road, Willowbrook, IL 60527; Fax (630) 986-2120.
     Eligible barges are dry cargo river barges, built and 
maintained in accordance with ABS River Rules, Length-to-depth ratio is 
less than 22, and all weathertight and watertight

[[Page 68368]]

closures are in proper working condition. There is no age limitation.
     Barges freeboard must be at least 24 inches (610 mm). On 
open hopper barges, the coaming height + freeboard must be at least 54 
inches (1,372 mm).
     Tow limitations: Barges must be unmanned. Barges must 
transit within 5 nautical miles from shore. There is no limit on the 
number of barges in tow.
     Cargo limitations: Dry cargoes only. Liquid cargoes, even 
in drums or tank containers, are prohibited. No hazardous materials. 
HazMats are defined in 46 CFR part 148 and 49 CFR chapter 1, subchapter 
C.
     Weather limitations: Voyages will be conducted in ``Fair 
weather'' only. If worse conditions arise during the transit, the 
voyage must be discontinued and tow must proceed to shelter.
     Pre-departure preparations: Required; as specified in 46 
CFR 45.191.
     Tow requirements:
    [cir] Power: sufficient to handle tow.
    [cir] Communication system: Recommended; 46 CFR 45.195(a).
    [cir] Cutting gear: Recommended; 46 CFR 45.195(b).
    [cir] Operational plan: Recommended; 46 CFR 45.197.

Coast Guard Inspected River Barges

    Unmanned inspected river barges operating between Chicago Harbor 
Lock, Chicago, Illinois and Calumet Harbor, Chicago, Illinois must meet 
the following requirements:
     Markings: Great Lakes diamond without seasonal marks.
     Stability: Applicable 46 CFR subchapter S requirements.
     Strength: ABS Rules for Rivers and Intracoastal Waterways. 
Tank barges over 300 feet in length must have loading information per 
46 CFR 31.10-32.
     Freeboard: Dry cargo and tank barges are to comply with 
the freeboard requirements of 46 CFR Part 45. Dry cargo barges will not 
be assessed penalties for hatch coaming or hatch cover deficiencies.
     Load Line Certificate: Great Lakes certificate with the 
following notation: ``This certificate is valid only for unmanned fair 
weather voyages between Calumet Harbor, Chicago, Illinois and Burns 
Harbor, Indiana.''
     Operating restrictions: Voyages will be conducted in 
``Fair weather'' only. If worse conditions arise during the transit, 
the voyage must be discontinued and tow must proceed to shelter. Barges 
must transit within 5 nautical miles of shore.

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 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, 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 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 RNA is intended to facilitate commerce and 
will not restrict navigation because it will allow barges to transit an 
additional route without making any changes to the current barge 
requirements. Overall, we expect the economic impact of this rule to be 
minimal and that a full Regulatory Evaluation is unnecessary.

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 regulated navigation area will not have a significant economic 
impact on a substantial number of small entities because it is intended 
to facilitate commerce and will not restrict navigation because it will 
allow barges to transit an additional route without making any changes 
to the current barge requirements. 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 so that they can better evaluate 
its effects on them and participate in the rulemaking. 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 Lieutenant Heidi Bragalone, 
Waterways Management Branch, Coast Guard Marine Safety Unit Chicago, 
Willowbrook, IL at (630) 986-2131. 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 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 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

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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

    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 rule 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. 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. 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.T09-0592 to read as follows:


Sec.  165.T09-0592  Regulated Navigation Area, Lake Michigan; Chicago 
Harbor Lock, Chicago, IL to Calumet Harbor, Chicago, IL.

    (a) Location. All waters of Lake Michigan, between Chicago Harbor 
Lock, Chicago, Illinois, to Calumet Harbor, Chicago, Illinois, 
extending within 5 nautical miles from shore.
    (b) Effective period and enforcement. The regulated navigation area 
described in paragraph (a) of this section will be effective from 
November 1, 2014, through March 31, 2015. This section is expected to 
be enforced from November 1, 2014, through March 31, 2015, but the 
enforcement dates and times for this regulated navigation area are 
subject to change. In the event of a change within the effective 
period, the Ninth District Commander will provide notice to the public 
by issuing a Notice of Enforcement for publication in the Federal 
Register, and announcing a Broadcast Notice to Mariners.
    (c) Regulations. (1) Unmanned dry cargo river barges transiting 
between Chicago Harbor Lock, Chicago, Illinois and Calumet Harbor, 
Chicago, Illinois must meet the same requirements for voyages between 
Burns Harbor, Indiana and Calumet Harbor, Chicago, Illinois, outlined 
in Table 45.171 of 46 CFR 45.171, as follows:
    (i) Load line requirement: Conditionally exempted from load line 
assignment.
    (ii) Where to register/apply: Exempted barges must be registered 
with the USCG Marine Safety Unit, 555A Plainfield Road, Willowbrook, IL 
60527; Fax (630) 986-2120.
    (iii) Eligible barges are dry cargo river barges, built and 
maintained in accordance with ABS River Rules, Length-to-depth ratio is 
less than 22, and all weathertight and watertight closures are in 
proper working condition. There is no age limitation.
    (iv) Barges freeboard must be at least 24 inches (610mm). On open 
hopper barges, the coaming height + freeboard must be at least 54 
inches (1,372 mm).
    (v) Tow limitations: Barges must be unmanned. Barges must transit 
within 5 nautical miles from shore. There is no limit on the number of 
barges in tow.
    (vi) Cargo limitations: Dry cargoes only. Liquid cargoes, even in 
drums or tank containers, are prohibited. No hazardous materials. 
Hazardous materials are defined in 46 CFR part 148 and 49 CFR chapter 
1, subchapter C.
    (vii) Weather limitations: Voyages will be conducted in ``Fair 
weather'' only. If worse conditions arise during the transit, the 
voyage must be discontinued and tow must proceed to shelter.
    (viii) Pre-departure preparations: Required; as specified in 46 CFR 
45.191.
    (ix) Tow requirements:
    (A) Power: Sufficient to handle tow.
    (B) Communication system: Recommended; 46 CFR 45.195(a).
    (C) Cutting gear: Recommended; 46 CFR 45.195(b).
    (D) Operational plan: Recommended; 46 CFR 45.197.
    (2) Unmanned inspected river barges operating between Chicago 
Harbor Lock, Chicago, Illinois and Calumet Harbor, Chicago, Illinois 
must meet the following requirements:
    (i) Markings: Great Lakes diamond without seasonal marks.
    (ii) Stability: Applicable 46 CFR subchapter S requirements.
    (iii) Strength: ABS Rules for Rivers and Intracoastal Waterways. 
Tank barges over 300 feet in length must have loading information per 
46 CFR 31.10-32.
    (iv) Freeboard: Dry cargo and tank barges are to comply with the 
freeboard requirements of 46 CFR part 45. Dry cargo barges will not be 
assessed penalties for hatch coaming or hatch cover deficiencies.
    (v) Load Line Certificate: Great Lakes certificate with the 
following notation: ``This certificate is valid only for unmanned fair 
weather voyages between Calumet Harbor, Chicago, Illinois and Burns 
Harbor, Indiana.''
    (vi) Operating restrictions: Voyages will be conducted in ``Fair 
weather'' only. If worse conditions arise during the transit, the 
voyage must be discontinued and tow must proceed to shelter. Barges 
must transit within 5 nautical miles from shore.


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    Dated: October 30, 2014.
F.M. Midgette,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2014-27168 Filed 11-14-14; 8:45 am]
BILLING CODE 9110-04-P