[Federal Register: November 18, 2003 (Volume 68, Number 222)]
[Rules and Regulations]
[Page 64988-64990]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18no03-7]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD09-03-214]
RIN 1625-AA11
Regulated Navigation Area; Des Plaines River, Joliet, IL
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is revising the effective period for a
regulated navigation area (RNA) on the Des Plaines River in Joliet,
Illinois. This action is necessary to ensure vessel and public safety
due to several serious allisions with this bridge structure. This rule
is intended to restrict vessel traffic in a portion of the Des Plaines
River near Joliet, Illinois.
DATES: Effective November 15, 2003. Section 165.T09-214 expires March
1, 2004.
ADDRESSES: Comments and material received from the public, as well as
documents indicated in this preamble as being available in the docket
are part of docket [CGD09-02-214] and are available for inspection or
copying at Coast Guard Marine Safety Office (MSO) Chicago, 215 W. 83rd
St., Suite D, Burr Ridge, Illinois 60521 between 8 a.m. and 3:30 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: MST2 Kenneth Brockhouse, U.S. Coast
Guard Marine Safety Office Chicago, at (630) 986-2175.
SUPPLEMENTARY INFORMATION:
Regulatory Information
On May 21, 2003, we published a temporary final rule (TFR) entitled
``Regulated Navigation Area; Des Plaines River, Joliet, Illinois'' in
the Federal Register (68 FR 27727). We received 25 letters commenting
on that TFR which we have summarized in the Discussion of Comments
section. We plan on addressing those comments in the notice of proposed
rulemaking (NPRM). The only adjustment being made to the temporary
Sec. 165.T09-214 created by the May 21, 2003 TFR is the effective
period. No public meeting was requested and none was held.
We are extending the effective period of the temporary final rule
so that we can complete rulemaking CGD09-03-285 Regulated Navigation
Area, Joliet, Illinois, to permanently establish restrictions on
southbound tows transiting the Des Plaines River through Joliet,
Illinois. Past allisions with the Jefferson Street Bridge highlight
safety concerns when certain tows transiting this area. Extending the
effective period until March 1, 2004 should provide sufficient time to
complete the rulemaking. Since the temporary rule was to expire
November 15, 2003, we are reinstating and revising it effective
November 15, 2003.
We did not publish a notice of proposed rulemaking (NPRM) for this
rule and it is being made effective less than 30 days after publication
in the Federal Register. When we promulgated the May 21, 2003 TFR, we
were still ascertaining what steps were required in response to an
allision just prior to that date. We received numerous comments in
response to our temporary final rule as to what future actions were
desirable.
Since public response to this temporary final rule was anticipated,
we are currently finalizing an NPRM to be published shortly. That
rulemaking will follow normal notice and comment procedures, and a
final rule should be published before March 1, 2004.
Continuing the temporary final rule in effect while permanent
rulemaking is in progress will help ensure the safety of this bridge
structure. On May 2, 2003, a tow allided with the pier of the Jefferson
Street Bridge which resulted in substantial damage to the bridge
structure. As a result, it is estimated that the bridge will be
inoperable for 4 to 6 months while repairs are made. The Captain of the
Port Chicago believes that immediate action is necessary to help
prevent any future allisions with the pier. Further, additional
allisions might result in total structural failure, closure of the
river for a period of time as a result of an allision, and the possible
loss of life as a result of another allision. Prior to this accident,
another tow had allided with the bridge, which resulted in a closure of
over 6 months. These allisions are not only dangerous to the safety of
navigation, but also to persons who are on the bridge as tows transit
underneath. Therefore, under 5 U.S.C. 553(b)(B) and (d)(3) good cause
exists for why an NPRM is not required and why this rule will be made
effective fewer than 30 days after publication in the Federal Register.
Background and Purpose
On May 2, 2003, a southbound tow allided with the pier of the
Jefferson Street bridge. This allision resulted in significant
structural damage to the bridge pier. Southbound tows with a 3 by 5
configuration, transiting under the Cass Street Bridge and then the
Jefferson Street Bridge, only have 100 feet of
[[Page 64989]]
horizontal maneuvering room. In addition, the Des Plaines River
regularly has significant current in this area.
In order to prevent future allisions, an RNA was established from
the Ruby Street Bridge to the McDonough Street Bridge in which
southbound tows in a 3 by 5 configuration must use an assist tug. This
RNA is being established until an adequate protection cell is
constructed around the bridge pier.
Discussion of Rule
Southbound tows greater than 89 feet in overall width and more than
800 feet in length must use an assist tug when transiting through the
RNA. This RNA encompasses the Des Plaines River from mile 288.7 (the
Ruby Street Bridge), to mile 287.3 (the McDonough Street Bridge).
Deviation from this rule is prohibited unless specifically authorized
by the Commander, Ninth Coast Guard District or his designated
representative. His designated representative is the Captain of the
Port Chicago.
Discussion of Comments
As of September 1, 2003, we received 25 written comments on the
temporary final rule. All comments received generally focused on: (1)
Length of Tows; (2) Width of Tows; (3) Protection Cells; (4) Tug
Assist; (5) Economic Impact; and (6) Direction of Regulated Navigation
Area.
Length of Tows. Several comments were received with the concern of
length of tows. Three comments stated that the wording was confusing.
Eight comments received wanted the length of tows shorter than
described and 1 comment received stated that the length is too
restrictive.
Width of Tows. We received eight comments stating that the width of
tows should be reduced smaller and one comment stating that the width
requirement is too restrictive.
Protection Cells. Nine comments were received stating that
protection cells should be constructed along the Des Plaines River in
the Joliet Harbor area.
Tug Assist. Eight comments were received stating that tug assists
were not needed due to the channel being too narrow and that it would
be too expensive. Three comments were in favor of tug assists
Economic Impact. Economic Impact is divided into the impact felt by
the maritime industry as well as the business district of Joliet
Harbor. Eight comments were received by the maritime industry stating
that the regulated navigation area will cause a loss in business due to
the restrictions placed on number of barges allowed through Joliet
Harbor. Ten comments were received by the business' in Joliet stating
that the regulated navigation area will protect the bridges and will
allow uninterrupted flow of traffic from a bridge being down due to
casualties caused by the maritime industry.
Direction of Regulated Navigation Area. We received 8 comments
stating that the regulation should include northbound tows as well as
southbound. Five comments were received stating the restriction should
only be required for southbound tows.
Regulatory Evaluation
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. It is not ``significant'' under the
regulatory policies and procedures of the Department of Homeland
Security. The operational reporting requirements of the RNA are minimal
and necessary to provide immediate, improved security for the public,
vessels, and U.S. ports and waterways. The requirements do not alter
normal barge cargo loading operations or transits. Additionally, this
rule is temporary in nature and the Coast Guard may issue an NPRM as it
considers whether to make this rule permanent. The minimal hardships
that may be experienced by persons or vessels are necessary to the
national interest in protecting the public, vessels, and vessel crews
from the devastating consequences of acts of terrorism, and from
sabotage or other subversive acts, accidents, or other causes of a
similar nature.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. 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
may be small entities: The operators of southbound tows, in a 3 by 5
configuration, intending to transit through the RNA. This RNA will not
have a significant economic impact on a substantial number of small
entities because this rule will only remain in effect until a
protection cell can be erected or until other recommendations are
provided which reduce the risk of allisions with the Jefferson Street
Bridge.
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.
Assistance for Small Entities
Under subsection 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to
assist small entities in understanding the rule so that they can better
evaluate its effects on them and participate in the rulemaking process.
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).
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).
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.
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 or more in any
one year.
[[Page 64990]]
Though this rule will not result in such an expenditure, we do discuss
the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference With Constitutionally Protected Property
Rights.
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.
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.
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.
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.
Environment
We have analyzed this rule under Commandant Instruction M16475.1D,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1 paragraph (34)(g), of the instruction, from further
environmental documentation because this rule is not expected to result
in any significant environmental impact as described in NEPA. A final
``Environmental Analysis Check List'' and a final ``Categorical
Exclusion Determination'' are available in the docket where indicated
under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Waterways.
0
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. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 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. Reinstate and revise temporary Sec. 165.T09-214 to read as follows:
Sec. 165.T09-214 Regulated Navigation Area; Des Plaines River,
Joliet, Illinois
(a) Regulated Navigation Area. The following waters are a Regulated
Navigation Area (RNA): All portions of the Des Plaines River between
mile 287.3 (McDonough St. Bridge) to mile 288.7 (Ruby Street Bridge).
(b) Applicability. This section applies to operators of all
southbound tows transiting beneath the Jefferson Street Bridge (mile
287.9), Joliet, Illinois, with barge configurations of over 89 feet in
overall width and more than 800 feet in length.
(c) Effective dates. This section is effective from 8 a.m., May 11,
2003, until March 1, 2004.
(d) Regulation. (1) All southbound tows to which this section
applies must use an assist tug when transiting through the RNA.
(2) The general regulations contained in 33 CFR 165.13 apply to
this section.
(3) Deviation from this section is prohibited unless specifically
authorized by the Commander, Ninth Coast Guard District or his
designated representatives. Designated representatives include the
Captain of the Port Chicago.
Dated: November 10, 2003.
Ronald F. Silva,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 03-28801 Filed 11-13-03; 3:54 pm]
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