Daily Rules, Proposed Rules, and Notices of the Federal Government
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We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to
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In 2007, the Department of the Interior through the Fish and Wildlife Service listed the Asian Carp and the Silver Carp as Injurious Wildlife Species. Based upon testing conducted by the United States Army Corps of Engineers (USACE), the Asian carp are believed to be migrating toward the Great Lakes through the Chicago Sanitary and Ship Canal and connected tributaries. Scientists are concerned that if these aquatic nuisance species reach the Great Lakes in sufficient numbers that they might devastate the Great Lakes commercial and sport fishing industries.
The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, as amended by the National Invasive Species Act of 1996, authorized the USACE to conduct a demonstration project to identify an environmentally sound method for preventing and reducing the dispersal of non-indigenous aquatic nuisance species through the Chicago Sanitary and Ship Canal.
Subsequently, the USACE put in place an electric barrier to prevent and reduce the dispersal of Asian carp in the Chicago Sanitary and Ship Canal. Specifically, a demonstration dispersal barrier (Barrier I) was constructed and has been in operation since April 2002. It is located approximately 30 miles from Lake Michigan and creates an electric field in the water by pulsing low voltage DC current through steel cables secured to the bottom of the canal. A second barrier (Barrier IIA) was constructed 800 to 1300 feet downstream of Barrier I. Barrier IIA is currently operating at two volts per inch, 15 Hertz, and 6.5 ms. Construction on Barrier IIB was completed in early 2011. Operational and safety testing was conducted on Barrier IIB in February 2011 and is being analyzed. The completion of Barrier IIB should allow for maintenance operations with reduced need for the use of other aquatic nuisance species countermeasures.
In addition to the aforementioned electric dispersal barriers, the ACRCC has been conducting fish sampling in the Chicago Area Waterway System. The purpose of this sampling is to detect the potential presence of Asian Carp and other aquatic nuisance species within the waters covered by this proposed safety zone. Upon detection of the presence of Asian Carp or other aquatic nuisance species within any segment of the waterways covered by this safety zone, the ACRCC will take action designed to control the spread of aquatic nuisance species within the area of detection. The various types of actions that the ACRCC might take are outlined in the Asian Carp Control Strategy Framework, which can be found on the ACRCC's Web site:
Because of the ACRCC's testing and countermeasure activity, the Captain of the Port, Sector Lake Michigan, put in place a Temporary Interim Rule (TIR) on May 1, 2010. This TIR established a 77 mile long safety zone from Brandon Road Lock to Lake Michigan in Chicago, IL. The purpose of that safety zone was to provide the Captain of the Port, Sector Lake Michigan, with the ability to take targeted and expeditious action to protect vessels and persons from the hazards associated with the aquatic nuisance testing and the countermeasure activities detailed in the ACRCC's Asian Carp Control Strategy Framework. Although that TIR expired on March 1, 2011, the ACRCC will continue their testing and countermeasure activities. Thus, the Captain of the Port, Sector Lake Michigan, still finds it necessary to have the ability to take targeted and expeditious actions in the affected waterways to protect vessels and persons from the ACRCC's expected actions. For this reason, the Captain of the Port, Sector Lake Michigan, proposes to establish a permanent safety zone along the same waterways covered in the previously published TIR. Like the safety zone established in the TIR, this proposed safety zone will only be enforced when testing and countermeasure activity require the Captain of the Port, Sector Lake Michigan to enforce the safety zone.
This proposed rule places a permanent safety zone on 77 miles of waterways from Brandon Road Lock and Dam (mile marker 286.0) to Lake Michigan, including the waterways of the Des Plaines River, the CSSC, branches of the Chicago River, and the Calumet-Saganashkee Channel (Cal-Sag Channel). The Coast Guard has deemed this safety zone necessary to protect the
The Captain of the Port, Sector Lake Michigan, may enforce this safety zone in whole or in segments. Although the safety zone may be enforced in its entirety, it is the intention of the Captain of the Port, Sector Lake Michigan to enforce the safety zone, depending on the circumstances, in the smallest segments possible. By enforcing only small segments of the safety zone, the Captain of the Port, Sector Lake Michigan, retains the flexibility to focus enforcement efforts only on those portions of the safety zone actually affected by aquatic nuisance species countermeasures. It is expected that this enforcement scheme will minimize waterway closures and any corresponding effects on vessel traffic. Any segment of this proposed safety zone to be enforced shall be delineated by mile markers and/or landmarks (
Vessels may transit through any portion of the safety zone that is not being enforced. Entry into, transiting, mooring, laying up, or anchoring within an enforced segment of the safety zone, however, is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative. All vessels desiring to enter a segment of a waterway in which this safety zone is being enforced must obtain permission from the Captain of the Port, Sector Lake Michigan, to do so and must follow all orders from the Captain of the Port, Sector Lake Michigan, or his or her designated representative while in the zone.
Even during periods of enforcement, the Captain of the Port, Sector Lake Michigan, will make every effort to permit vessel entry into any enforced segment of the safety zone until on-scene preparations begin for aquatic nuisance species countermeasures. Once on-scene preparations begin and until clean-up is complete, however, no vessel, except those being used for aquatic nuisance species countermeasures or those having specific permission from the Captain of the Port, Sector Lake Michigan, will be permitted to enter or remain in an enforced segment of the safety zone.
As the necessary clean-up actions are completed, the Captain of the Port, Sector Lake Michigan, will begin to re-open segments of the waterways in an effort to minimize disruption or waterway use. As soon as the aquatic nuisance species countermeasures are complete, the safety zone will no longer be enforced and the Captain of the Port, Sector Lake Michigan, will notify the public of such by all appropriate means. Such means of notification include, but are not limited to, Broadcast Notice to Mariners or Local Notice to Mariners.
The Captain of the Port, Sector Lake Michigan, maintains a live radio watch on VHF Channel 16 and a telephone line that is manned 24-hours a day, seven days a week. The public can obtain information concerning enforcement of the safety zone by contacting the Captain of the Port, Sector Lake Michigan, via the Coast Guard Sector Lake Michigan Command Center at 414-747-7182.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed 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 expect the economic impact of this proposed rule to be minimal. This determination is based on the following: (1) While this rule proposes to establish a safety zone that is 77 miles long, the Captain of the Port, Sector Lake Michigan, will enforce the safety zone only in relatively small segments. The Captain of the Port, Sector Lake Michigan, will have the flexibility to enforce the safety zone in only the segments of the safety zone affected by the application of piscicide, targeted fishing operations or other countermeasures to address the problem of aquatic nuisance species invasion; and (2) The Captain of the Port, Sector Lake Michigan, will make every effort to reduce the closure time of the enforced segments of the safety zone.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners and operators of vessels intending to transit or anchor in any enforced segment of the 77-mile safety zone. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (
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 so that they can better evaluate its effects on them and participate in the rulemaking process. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR William Nabach, Asst. Chief of Prevention, Sector Lake Michigan, at (414) 747-7159. 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.
This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A proposed 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 proposed rule under that Order and have determined that it does not have implications for federalism.
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.
This proposed rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed 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.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed 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.
This proposed 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.
We have analyzed this proposed 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.
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed 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 concluded that this action is one of the category of actions which do not individually or cumulatively have significant effect on the human environment. Therefore, this proposed rule is categorically excluded, under section 2.B.2 Figure 2-1, paragraph (34)(g), of the Instruction and neither an environmental assessment nor an environmental impact statement is required. This proposed rule involves the establishing, disestablishing, or changing of a security or safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under
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:
1. The authority citation for part 165 continues to read as follows:
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.
2. Add § 165.930 to read as follows:
(2) The safety zone established by this section will be enforced, pursuant to paragraph (c)(1) of this section, only upon notice by the Captain of the Port, Sector Lake Michigan. Suspension of any previously announced period of enforcement will also be provided by the Captain of the Port, Sector Lake Michigan. All notices of enforcement and notices of suspension of enforcement will clearly describe any segments of the safety zone affected by the notice. At a minimum, notices of enforcement and notices of suspension of enforcement will identify any affected segments by reference to mile markers. When possible, the Captain of the Port, Sector Lake Michigan, will also identify enforced segments of this safety zone by referencing readily identifiable geographical points. In addition to providing the geographical bounds of any enforced segment of this safety zone, notices of enforcement will also provide the date(s) and time(s) at which enforcement will commence or suspend.
(3) The Captain of the Port, Sector Lake Michigan, will publish notices of enforcement and notices of suspension of enforcement in accordance with 33 CFR 165.7(a) and in a manner that provides as much notice to the public as possible. The primary method of notification will be through publication in the
(2) The “designated representative” of the Captain of the Port, Sector Lake Michigan, is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port, Sector Lake Michigan, to act on his or her behalf. The designated representative of the Captain of the Port, Sector Lake Michigan, will be aboard a Coast Guard, Coast Guard Auxiliary, or other designated vessel or will be on shore and will communicate with vessels via VHF radio, loudhailer, or by phone. The Captain of the Port, Sector Lake Michigan, or his or her designated representative may be contacted via VHF radio Channel 16 or the Coast Guard Sector Lake Michigan Command Center at 414-747-7182.
(3) To obtain permission to enter or operate within an enforced segment of the safety zone established by this section, Vessel operators must contact the Captain of the Port, Sector Lake Michigan, or his or her designated representative. Vessel operators given permission to operate in an enforced segment of the safety zone must comply with all directions given to them by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.
(4) When a segment of the safety zone is being enforced, it will be closed to all vessel traffic, except as may be permitted by the Captain of the Port, Sector Lake Michigan, or his or her designated representative. As soon as operations permit, the Captain of the Port, Sector Lake Michigan, will issue a notice of suspension of enforcement as specified in paragraph (c) of this section.
(5) All persons entering any enforced segment of the safety zone established in this section are advised that they do so at their own risk.