
[Federal Register Volume 78, Number 110 (Friday, June 7, 2013)]
[Rules and Regulations]
[Pages 34258-34261]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13520]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2013-0405]
RIN 1625-AA00


Safety Zone; Salvage Operations at 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 
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.

DATES: 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.

ADDRESSES: 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.

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.

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 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.

[[Page 34259]]

The 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.

[[Page 34260]]

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 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).

 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 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. We seek 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. Add Sec.  165.T09-0405 to read as follows:


Sec.  165.T09-0405  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.

[[Page 34261]]

    (b) Effective and Enforcement Period. This safety zone will be 
effective and enforced from May 17, 2013, until November 30, 2013.
    (c) Regulations.
    (1) In accordance with the general regulations in Sec.  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.

    Dated: May 17, 2013.
M.W. Sibley,
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


