[Federal Register Volume 83, Number 20 (Tuesday, January 30, 2018)]
[Proposed Rules]
[Pages 4171-4175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01745]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2017-1095]
RIN 1625--AA11; 1625-AA00


Regulated Navigation Area, Chicago Sanitary and Ship Canal, 
Romeoville, IL

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard proposes to amend the navigational and 
operational restrictions of the Regulated Navigation

[[Page 4172]]

Area (RNA) on the Chicago Sanitary and Ship Canal (CSSC) near 
Romeoville, Illinois and remove the redundant Safety Zone currently in 
place. The purpose of this amendment is to improve safety and clarify 
regulations for vessels transiting the navigable waters located 
adjacent to and over the U.S. Army Corps of Engineers' Aquatic Nuisance 
Species electric dispersal barrier system (EDBS).

DATES: Comments and related material must be received by the Coast 
Guard on or before April 30, 2018.

ADDRESSES: You may submit comments identified by docket number USCG-
2017-1095 using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for 
Comments'' portion of the SUPPLEMENTARY INFORMATION section for further 
instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: If you have questions about this 
proposed rulemaking, call or email Lieutenant John Ramos, Marine Safety 
Unit Chicago, U.S. Coast Guard; telephone (630) 986-2131, email 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations

CFR Code of Federal Regulations
CSSC Chicago Sanitary and Ship Canal
DHS Department of Homeland Security
EDBS Electric Dispersal Barrier System
E.O. Executive order
FR Federal Register
NPRM Notice of proposed rulemaking
Pub. L. Public Law
RNA Regulated Navigation Area
Sec.  Section
U.S.C. United States Code

II. Background, Purpose, and Legal Basis

    The purpose of this proposed rule is to eliminate a redundant 
safety zone and remove several requirements from a Regulated Navigation 
Area that are no longer necessary. There currently exists, in 33 CFR 
165.923, certain navigational, environmental, and operational 
restrictions on all vessels transiting the navigable waters located 
adjacent to and over the U.S. Army Corps of Engineers' Aquatic Nuisance 
Species electric dispersal fish barrier. 33 CFR 165.923(a)(1) 
establishes a safety zone in the CSSC from mile marker 296.1 to mile 
marker 296.7. Additionally, 33 CFR 165.923(b)(1) establishes a 
regulated navigation area from mile marker 295.5 to mile marker 297.2. 
There also exists, in 33 CFR 165.930, a safety zone from mile marker 
286.0 to mile marker 333.3 that includes the totality of the safety 
zone in 33 CFR 165.923(a)(1), rendering it redundant.
    In 2013, the U.S. Coast Guard Research and Development Center 
completed a marine safety risk assessment for the waters of the CSSC in 
the vicinity of the Aquatic Nuisance Species EDBS near Romeoville, 
Illinois. The overarching goal of the risk assessment was to determine 
the adequacy of present risk mitigation strategies and, if necessary, 
recommend alternatives to the present strategies. The report generated 
at the conclusion of the risk assessment noted apparent confusion among 
waterway users regarding the boundaries and requirements for the safety 
zone and RNA outlined in 33 CFR 165.923. The report also identified 
certain requirements still in effect which had basis in the existing 
Rule that have since changed over the period of the rule and may longer 
currently apply. This Notice of Proposed Rulemaking addresses 
recommended amendments to the regulations based on the report's 
conclusions and recommendations.
    The proposed amendments are intended to improve safety, reduce 
confusion and eliminate unnecessary burden to vessels transiting the 
safety zone and RNA of the CSSC in the vicinity of the EDBS near 
Romeoville, Illinois. The Coast Guard is issuing this proposed rule 
under 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.

III. Discussion of Proposed Rule

    The purpose of safety zone delineated in Sec.  165.923(a)(1) is to 
inhibit the potential transfer of live Silver or Asian carp, viable 
eggs or gametes into the waterway north of the electric barrier. To 
serve this purpose, the safety zone requirements outlined in 33 CFR 
165.923(a)(2) restrict vessels transiting with non-potable water on 
board if they intend to release that water in any form within or on the 
other side of the safety zone. A larger safety zone, described at 33 
CFR 165.930(a)(2), also encompasses this same area. That safety zone, 
however, does not contain regulations prohibiting vessels from 
transiting the zone if they have any non-potable water onboard and 
intent to release that water within or beyond the safety zone.
    The Coast Guard also proposes to eliminate the CSSC safety zone 
outlined in 33 CFR 165.923(a). This revision would eliminate redundancy 
currently existing in regulations because the CSSC is already regulated 
by the larger safety zone delineated in 33 CFR 165.930(a)(2). The 
requirements in 33 CFR 165.923(a)(2) for the transit of non-potable 
water would be preserved, but incorporated into the CSSC's RNA 
regulations in what is now 33 CFR 165.923(b)(2). Therefore, 33 CFR 
165.923(b) will become 33 CFR 165.923(a) with the elimination of the 
safety zone. The following paragraphs describe additional changes that 
will be made to the RNA regulations.
    The Coast Guard proposes to remove the RNA's bow boat requirement 
in 33 CFR 165.923(b)(2)(ii)(C). The RNA currently requires that all up-
bound and down-bound tows that consist of barges carrying flammable 
liquid cargoes (Grade A through C, flashpoint below 140 degrees 
Fahrenheit, or heated to within 15 degrees Fahrenheit of flash point) 
engage the services of a bow boat at all times until the entire tow is 
clear of the RNA. The original bow boat requirement intended to reduce 
the possibility of a spark-induced event due to allision between a 
barge carrying flammable liquid cargo and barges at the Will County 
Generating Station Coal Wharf (RDB MM 296.0) while the facility 
conducted coal loading and barge fleeting. At times barge fleets were 
three-wide (approximately 105 feet), extending into the 160-wide cut, 
less than 500 feet downstream of Barrier II-A. Since barge loading and 
fleeting ceased in September 2012, the basis for this requirement no 
longer exists.
    The Coast Guard also proposes to modify the requirement in 33 CFR 
165.923(b)(2)(ii)(E) that commercial tows be made up with only wire 
rope to ensure electrical connectivity between all segments of the tow. 
The purpose of this requirement is to ensure electrical connectivity 
between all segments of the tow in order to prevent arcing while 
transiting the electric barrier and to prevent high contact potentials 
between vessels in the tow. However, the Coast Guard recognizes that 
adequate means of securing a tow configuration are not exclusive to the 
use of wire rope and towboats frequently use high-tensile strength 
aramid, high-modulus polyethylene, or composite fiber ropes (``soft-
lines'') as wing-wires or face-wires, and occasionally as barge 
lashings. Government observers have seen towboats use a single, wire-
rope from barge winch to towboat h-bitt, thus providing adequate 
electrical connectivity, if sufficiently taut, and contacting bare-
metal surfaces. The Coast Guard thus proposes to continue to require 
that commercial tows transiting the RNA ensure the maintenance of 
electrical connectivity between all segments of the tow through use of 
wire rope, but allow use of soft

[[Page 4173]]

lines to be used in addition to secure a tow. To account for use of 
soft-lines, the Coast Guard proposes to eliminate the requirement that 
a tow exclusively use wire rope, by removing the words ``with only'' 
from the subsection and allowing an appropriate alternative.
    Finally, the Coast Guard proposes to add a requirement to the RNA 
regulations that all vessels transit the RNA at a ``no-wake'' speed. 
Currently, the RNA does not provide a maximum safe speed for vessels 
transiting the RNA. Throughout the course of the marine risk 
assessment, the project team ascertained that the largest marine safety 
risk is electric shock to a person in the water. Video recording and 
shore-observer accounts indicate that many, smaller recreational 
vessels transit the EDBS at a speed that generates significant wake. 
Also, light-boat transits drag a wake that causes surging of barges 
moored to the loading facility just north of the pipeline arch. A no-
wake zone would reduce this risk not only to persons aboard vessels, 
but also to persons working ashore alongside the RNA.
    The aforementioned changes to the RNA regulations would require a 
slight reordering of what is now 33 CFR 165.923(b)(2)(ii)(A)-(K). With 
the removal of the safety zone, these regulations would be found in 33 
CFR 165.923(a). The removal of the bow boat requirement in 33 CFR 
165.923(b)(2)(ii)(C) would cause the other requirements to move up a 
letter, becoming the new 33 CFR 165.923(a)(2)(ii)(C)-(J). The ``no 
wake'' requirement would then become the new 33 CFR 
165.923(a)(2)(ii)(K) and the requirements for the transit of non-
potable water would be added in a new section, 33 CFR 
165.923(a)(2)(ii)(L).

IV. Regulatory Analyses

    We developed this proposed rule after considering numerous statutes 
and executive orders (E.O.s) related to rulemaking. Below we summarize 
our analyses based on a number of the statutes and E.O.s, and we 
discuss First Amendment rights of protestors.

A. Regulatory Planning and Review

    E.O.s 12866 and 13563 direct agencies to assess the costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits. 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility.
    E.O. 13771 directs agencies to control regulatory costs through a 
budgeting process. This NPRM has not been designated a ``significant 
regulatory action,'' under E.O. 12866. Accordingly, the NPRM has not 
been reviewed by the Office of Management and Budget, and pursuant to 
OMB guidance it is exempt from the requirements of E.O. 13771. As this 
proposed rule is anticipated to not be a significant regulatory action, 
this rule is exempt from the requirements of Executive Order 13771. See 
OMB's Memorandum titled ``Interim Guidance Implementing Section 2 of 
the Executive Order of January 30, 2017 titled `Reducing Regulation and 
Controlling Regulatory Costs''' (February 2, 2017).
    The proposed rule is not a significant regulatory action because 
this is an updated version with minor changes to an already existing 
rule. 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.

B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 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 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.
    The proposed revision of the safety zone and RNA will not have a 
significant economic impact on a substantial number of small entities 
because the proposed revision imposes minor additional requirements on 
industry; and provides clarity to preexisting requirements by removing 
redundancies. The proposed rule, by removing the bow boat requirement 
due the ceased barge loading and fleeting operations, would in turn 
reduce regulated costs.
    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.
    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 proposed rule. 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. The Coast Guard will not retaliate against small entities that 
question or complain about this proposed rule or any policy or action 
of the Coast Guard.

C. Collection of Information

    This proposed rule would not call for a new collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

D. Federalism and Indian Tribal Governments

    A rule has implications for federalism under E.O. 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 proposed rule under that Order and 
have determined that it is consistent with the fundamental federalism 
principles and preemption requirements described in E.O. 13132.
    Also, this proposed rule does not have tribal implications under 
E.O. 13175, Consultation and Coordination with Indian Tribal 
Governments, because it would 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. If 
you believe this proposed rule has implications for federalism or 
Indian tribes, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section above.

E. 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 proposed rule would not 
result in such an expenditure, we do discuss the effects of this rule 
elsewhere in this preamble.

[[Page 4174]]

F. Environment

    We have analyzed this proposed rule under DHS Management Directive 
023-01, which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made 
a preliminary determination 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 proposed rule involves revisions 
of the safety zone and RNA that provide clarity to preexisting 
requirements. Normally such actions are categorically excluded from 
further review under paragraph L60 of Appendix A, Table 1 of DHS 
Instruction Manual 023-01-001-01, Rev. 01. Paragraph L60 pertains to 
establishing, disestablishing, or changing Regulated Navigation Areas 
and Safety Zones. A preliminary Record of Environmental Consideration 
(REC) supporting this determination is available in the docket where 
indicated under the ADDRESSES section of this preamble. We seek any 
comments or information that may lead to the discovery of a significant 
environmental impact from this proposed rule.

G. 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.

V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, 
and will consider all comments and material received during the comment 
period. Your comment can help shape the outcome of this rulemaking. 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.
    We encourage you to submit comments through the Federal eRulemaking 
Portal at http://www.regulations.gov. If your material cannot be 
submitted using http://www.regulations.gov, contact the person in the 
FOR FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    We accept anonymous comments. All comments received will be posted 
without change to http://www.regulations.gov and will include any 
personal information you have provided. For more about privacy and the 
docket, you may review a Privacy Act notice regarding the Federal 
Docket Management System in the March 24, 2005, issue of the Federal 
Register (70 FR 15086).
    Documents mentioned in this NPRM as being available in the docket, 
and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's 
instructions. Additionally, if you go to the online docket and sign up 
for email alerts, you will be notified when comments are posted or a 
final rule is published.

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 proposes 
to amend 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; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-
1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 
0170.1.

0
2. Revise Sec.  165.923 to read as follows:


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

    (a) 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, waver runners, kayaks, row boats, etc.).
    (C) 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 
SECURIT[Eacute] call when approaching the RNA to announce intentions 
and work out passing arrangements.
    (D) Commercial tows transiting the RNA must use wire rope or 
appropriate alternatives to ensure electrical connectivity between all 
segments of the tow.
    (E) All vessels are prohibited from loitering in the RNA.
    (F) 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.
    (G) 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.
    (H) Vessels may not moor or lay up on the right or left descending 
banks of the RNA.
    (I) Towboats may not make or break tows if any portion of the 
towboat or tow is located in the RNA.
    (J) Persons onboard any vessel transiting the RNA in accordance 
with this rule or otherwise are advised they do so at their own risk.
    (K) All vessels transiting the RNA are required to transit at a no 
wake speed but still maintain bare steerageway.
    (L) Non-potable water. (i) All vessels are prohibited from 
transiting the restricted navigation area with any non-potable water on 
board if they intend to release that water in any form within, or on 
the other side of the restricted navigation area. Non-potable water 
includes, but is not limited to, any water taken on board to control or 
maintain trim, draft, stability, or stresses of the vessel. Likewise, 
it includes any water taken on board due to free communication between 
the hull of the vessel and exterior water. Potable water is water 
treated and stored aboard the vessel that is suitable for human 
consumption.
    (ii) Vessels with non-potable water on board are permitted to 
transit the restricted navigation area if they have taken steps to 
prevent the release, in any form, of that water in or on the other side 
of the restricted navigation area. Alternatively, vessels with non-
potable water on board are permitted to transit the restricted 
navigation area if they have plans to dispose of the water in a 
biologically sound manner.
    (iii) Vessels with non-potable water aboard that intend to 
discharge on the other side of the restricted navigation area must 
contact the Coast Guard's Ninth District Commander or his or her 
designated representatives prior to

[[Page 4175]]

transit and obtain permission to transit and discharge. Examples of 
discharges that may be approved include plans to dispose of the water 
in a biologically sound manner or demonstrate through testing that the 
non-potable water does not contain potential live Silver or Asian carp, 
viable eggs, or gametes.
    (iv) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into, transiting, or anchoring within this safety zone 
by vessels with non-potable water on board is prohibited unless 
authorized by the Coast Guard's Ninth District Commander, his or her 
designated representatives, or an on-scene representative.
    (v) The Captain of the Port, Lake Michigan, may further designate 
an ``on-scene'' representative. The Captain of the Port, Lake Michigan, 
or the on-scene representative may be contacted via VHF-FM radio 
Channel 16 or through the Coast Guard Lake Michigan Command Center at 
(414) 747-7182.
    (b) Definitions. The following definitions apply to this section:
    Designated representative means the Captain of the Port Lake 
Michigan and Commanding Officer, Marine Safety Unit Chicago.
    On-scene representative means any Coast Guard commissioned, warrant 
or petty officer who has been designated by the Captain of the Port, 
Lake Michigan, to act on his or her behalf. The on-scene representative 
of the Captain of the Port, Lake Michigan, will be aboard a Coast 
Guard, Coast Guard Auxiliary, or other designated vessel or will be 
onshore and will communicate with vessels via VHF-FM radio or 
loudhailer.
    Vessel means every description of watercraft of other artificial 
contrivance used, or capable or being used, as a means of 
transportation on water. This definition includes, but is not limited 
to, barges.
    (c) Compliance. All persons and vessels must comply with this 
section and any additional instructions or orders of the Coast Guard's 
Ninth District Commander or his or her designated representatives. Any 
person on board any vessel transiting this RNA in accordance with this 
rule or otherwise does so at his or her own risk.
    (d) Waiver. For any vessel, the Coast Guard's Ninth District 
Commander or his or her designated representatives may waive any of 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 vessel and mariner 
safety.

    Dated: January 11, 2018.
J.M. Nunan,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2018-01745 Filed 1-29-18; 8:45 am]
 BILLING CODE 9110-04-P


