Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the waters of the Illinois River starting at Mile Marker 246.9 and extending 600 yards upstream of the Marseilles Dam to Mile Marker 247.2. This zone is intended to restrict the movement of vessels due to the salvage operations and repair efforts at the Marseilles Dam. This safety zone is necessary to protect the general public, vessels, and tows from the hazards associated with those repair and salvage operations.
This rule is effective in the CFR June 7, 2013 through November 30, 2013. This rule is effective for purposes of enforcement with actual notice on May 17, 2013. This rule will remain in effect until November 30, 2013.
Documents mentioned in this preamble are part of docket [USCG-2013-0405]. 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.
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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 Joseph.P.McCollum@USCG.mil. If you have questions on viewing or submitting material to the docket, call Barbara Hairston, Program Manager, Docket Operations, telephone 202-366-9826.
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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 transits in the zone without the permission of the Captain of the Port Lake Michigan. 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, to further ensure the safety of those vessels transiting in the vicinity of the Marseilles Dam and the salvage operations there, the Coast Guard established a temporary safety zone (USCG-2013-0334) that restricted access on 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. Because of the emergent nature of the flooding, the Coast Guard also did not solicit comments prior to establishing this temporary safety zone.
On May 3, 2013 the Coast Guard established an RNA on the Illinois River from the gates of the Dresden Lock and Dam at Mile Marker 271.4 to Mile Marker 240.0 (USCG-2013-0344). This RNA was established to ensure the safety of those vessels transiting in the vicinity of the Marseilles Dam and the Salvage Operation there. Enforcement of the prior safety zones were suspended. Start Printed Page 34259The RNA established restrictions which: directed vessels to transit under optimal ambient conditions; controlled tow configurations and other operational conditions; and established conditions which required a check-in process through Marseilles Lock and Dam. Because of the emergent nature of the river conditions, and the potential compromise of the Marseilles Dam, the Coast Guard also did not solicit comments prior to establishing this RNA.
Now the Coast Guard is issuing a fifth 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 and contrary to the public interest. The Coast Guard is issuing this rule in response to an immediate and hazardous situation which involves: salvage operations in the vicinity of the Marseilles Dam. Thus, 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 operations and repair efforts at 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; 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 damage critical infrastructure including river levees.
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. The salvage operations involve the use of multiple barges, cranes, vessels, and heavy equipment. A survey of the Marseilles Dam found that two gates had been severely damaged. Thus, in addition to the current hazardous conditions involved in the salvage operation, the Captain of the Port is issuing this temporary final rule for an extended effective period to allow for the repair efforts at the Marseilles Dam and the hazardous conditions which will be present during that time.
The safety risks associated with these conditions include collisions among heavy equipment, barges, and work vessels involved in the salvage and repair effort and passing vessel traffic, as well as damage or injury caused by falling debris.
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. Thus, this rule establishes a safety zone that encompasses all waters of the Illinois River starting at Mile Marker 246.9 and extending 600 yards upstream of the Marseilles Dam to Mile Marker 247.2. This rule will restrict vessels that intend to transit this portion of the Illinois River. This rule is effective and will be enforced with actual notice from May 17, 2013 until November 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.
D. 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 about six months to allow for vital salvage and repair operations. Also, this safety zone is designed to minimize its impact on navigable waters by allowing vessels to transit unrestricted to portions of the waterways not affected by the safety zone. 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. Start Printed Page 34260The 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 is designed to allow vessels to transit unrestricted to portions of the waterways not affected by the safety zone; an area to the south of the salvage and repair operations has been provided to allow traffic to transit the Illinois River when conditions surrounding the salvage operations allow. This safety zone would be effective and thus subject to enforcement, for about six 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).
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.
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. We seek comments or information that may lead to the discovery of a significant environmental impact from this rule.
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- Marine safety
- Navigation (water)
- Reporting and recordkeeping requirements
- Security measures
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
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1. The authority citation for part 165 continues to read as follows: End Amendment Part
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2. Add § 165.T09-0405 to read as follows: End Amendment Part
Safety Zone; Salvage Operations at Marseilles Dam; Illinois River.
(a) Location. All waters of the Illinois River starting at Mile Marker 246.9 and extending 600 yards upstream of the Marseilles Dam to Mile Marker 247.2.Start Printed Page 34261
(b) Effective and Enforcement Period. This safety zone will be effective and enforced from May 17, 2013, until November 30, 2013.
(1) In accordance with the general regulations in § 165.23 of this part, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port, Lake Michigan or his designated on-scene representative.
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port, Lake Michigan or his designated on-scene representative. The Captain of the Port, Lake Michigan or his on-scene representative may make exceptions to the restrictions of this safety zone for vessels intending to transit the Illinois River via the Marseilles Lock Canal and its approach channel south of Marseilles Dam. Notice of this exception, or other exceptions, will be made via Broadcast Notice to Mariners.
(3) 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.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port, Lake Michigan or his on-scene representative to obtain permission to do so. The Captain of the Port, Lake Michigan or his on-scene representative may be contacted via VHF Channel 16. 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, Lake Michigan, or his on-scene representative.
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Dated: May 17, 2013.
Captain, U.S. Coast Guard, Captain of the Port, Lake Michigan.
[FR Doc. 2013-13520 Filed 6-6-13; 8:45 am]
BILLING CODE 9110-04-P