[Federal Register Volume 61, Number 1 (Tuesday, January 2, 1996)]
[Proposed Rules]
[Pages 33-35]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31543]



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DEPARTMENT OF DEFENSE

Department of the Army

33 CFR Part 207


St. Marys Falls Canal and Locks, Michigan; Use, Administration, 
and Navigation

AGENCY: Corps of Engineers, Department of the Army, DOD.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Corps of Engineers proposes to amend the regulations which 
establish the operating schedule for Soo Locks at the St. Marys Falls 
Canal, Sault Ste. Marie, Michigan, to change the annual opening date 
from April 1 to March 25. The locks will not open earlier than March 
25, except in case of emergency and are subject to closure at any time 
in a national emergency involving a vessel disaster or other 
extraordinary circumstances as currently provided in 33 CFR 207.440(u).

DATES: Written comments should be received February 1, 1996.

ADDRESSES: Submit written comments, in duplicate, to: Mr. William 
Willis, Acting Chief, Construction-Operations Division, Detroit 
District, U.S. Army Corps of Engineers, P.O. Box 1027, Detroit, 
Michigan 48231-1027, Phone: (313) 226-6794, or deliver them to Mr. 
Willis at the Detroit District office at 477 Michigan Avenue, Detroit, 
Michigan, between the hours of 7:30 a.m. and 4:00 p.m. Monday through 
Friday. Comments received and other materials relevant to this proposed 
rulemaking can be inspected at Mr. Willis' office during the same 
hours. An appointment may be required for inspection, so please call 
ahead to confirm availability and to avoid any conflicts with 
inspections by other interested persons. A reasonable fee may be 
charged for copying services.

FOR FURTHER INFORMATION CONTACT:
Mr. Michael Kidby at Corps of Engineers Headquarters in Washington, 
D.C., by telephone at (202) 761-8835.

SUPPLEMENTARY INFORMATION:

Legal Authority

    The legal authority for the regulation governing the use, 
administration, and navigation of the St. Marys Falls Canal and Locks 
is Section 4 of the River and Harbor Act of August 18, 1894 (28 Stat. 
362), as amended, which is codified at 33 U.S.C. Section 1. This 
statute requires the Secretary of the Army to ``prescribe such 
regulations for the use, administration, and navigation of the 
navigable waters of the United States'' as the Secretary determines may 
be required by public necessity.

Background

    The regulation governing the operation of the St. Marys Falls Canal 
and Locks, in 33 CFR 207.440, was adopted on November 27, 1945 (10 FR 
14451), and has been the subject of nine amendments. The legislation 
allows the period of operation to be adjusted to meet the reasonable 
demands of commerce. The provision setting out the current opening date 
for the locks was adopted on October 30, 1956 (21 FR 8285). It 
establishes an opening date of April 1, subject to annual modification 
by the Division Engineer if the public interest would be best served by 
the modification or in the event of emergency.
    The opening date of the Soo Locks has been modified on a number of 
occasions and the length of the operating season has been the subject 
of a number of 

[[Page 34]]
studies. Between 1970 and 1979, as authorized by the River and Harbor 
Act of 1970, the locks at Sault St. Marie have remained open for as 
long as the entire year in a demonstration program on the 
practicability of winter navigation in the Great Lakes. Since the 1979 
navigation season, the Soo Locks have opened on the following dates: 
March 25, 1980; March 23, 1981; April 1, 1982; March 29, 1983; March 
26, 1984; April 1, 1985; April 1, 1986; March 22, 1987; March 22, 1988; 
March 15, 1989; March 21, 1990; March 21, 1991; March 22, 1992; March 
21, 1993; March 25, 1994; and March 25, 1995. During periods of 
navigation in ice, numerous environmental studies have indicated no 
significant adverse environmental effects.
    In 1977, a Final Environmental Impact Statement (FEIS) titled, 
``Operation, Maintenance, and Minor Improvements to the Federal 
Facilities at Sault Ste. Marie, Michigan'' was prepared. Subsequent to 
this, a Detroit District staff report and supplemental environmental 
impact statement (Supplement I, EIS) completed in 1979 recommended 
operation of the locks each year to January 8 <plus-minus> 1 week. 
Based on extensive environmental studies, a second supplemental EIS 
(Supplement II), dated September 1989, was completed by the Detroit 
District, concluding that no significant adverse environmental effects 
would result form annual operation of the locks as late as January 31 
<plus-minus> 2 weeks, and recommending that the closing date for the 
locks be extended to January 31 <plus-minus> 2 weeks. A Notice of 
Proposed Rulemaking to change the closing date to January 15 was 
published on April 3, 1991 (56 FR 13604) and subsequently became 
effective March 24, 1992.
    The proposal contained in this notice will establish a fixed 
opening date of March 25 for the Soo Locks. This fixed opening date, in 
conjunction with the January 15 closing date, will allow nearly 10 
months access to and from Lake Superior so that industry may have an 
adequate basis for planning and management of their resources.

History of the Present Amendment

    In March 1990, the Detroit District Engineer sent a letter to 
interested governmental, environmental, and business interests, 
proposing a comprehensive annual operating plan for the locks. It 
proposed a fixed closing date of January 15 and fixed opening date no 
earlier than March 15. Because the environmental studies of the 
supplemental EIS's in 1979 and 1989 focused specifically on the closing 
date, further environmental studies focusing on the effects of opening 
dates between March 15 and April 1 would be conducted in order to 
establish an opening date that would address the needs of both commerce 
and the environment.
    In 1991 and 1992, another series of environmental studies 
concerning lock opening were completed. Employing these studies as well 
as the environmental data from the prior studies which examined 
possible impacts for Supplements I and II, potential impacts of 
commercial navigation before April 1 were assessed. The resulting 
February 1993 Draft EIS (DEIS) identified no significant impacts for 
opening the locks as early as March 15. Rather, the study found that 
even significant vessel traffic, with ice cover, would result in only 
insignificant adverse environmental effects. Given the favorable 
economic benefits, as set forth in the DEIS, a March 21 opening date 
was suggested in the DEIS. However, to alleviate Michigan Department of 
Natural Resources (MDNR) concerns raised in response to this document, 
the U.S. Coast Guard, the U.S. Fish and Wildlife Service, the MDNR, and 
the Detroit District signed a Memorandum of Agreement (MOA) in August 
of 1993 recommending a fixed lock opening date of March 25. In this 
MOA, the Federal and state agencies agreed to perform joint monitoring 
studies of the aquatic ecosystem and biota. This recommendation and MOA 
were included in the FEIS and distributed for public review.

Proposed Amendments to the Regulation

    Based on consideration of the responses to the March 1990 letter, 
comments received on the Draft FEIS, further review of the pertinent 
background information in light of those responses, and the rationale 
set forth in the September 26, 1994 Record of Decision, the Corps of 
Engineers has determined that the overall public interest would be best 
served by implementing the March 25 fixed opening alternative. As was 
concluded by the District and Division Engineers, the recommended 
operation of the locks is engineeringly feasible and the overall 
adverse environmental effect of the March 25 opening date would not be 
significant. From an economic perspective, the establishment of a fixed 
opening date will create an atmosphere of stability and certainty 
within Great Lakes shipping interests and industries can plan and 
conduct their operations, and is economically justifiable.
    At present, the regulation provides that at least one lock will be 
placed in operation on April 1 and additional locks will be opened as 
vessel traffic increases. As a result of the regulation proposed in 
this notice, the April 1 opening date under the current regulations 
will be modified from April 1 to March 25.
    The Corps of Engineers proposes that the present authority of the 
Division Engineer to modify opening and closing dates in emergency 
conditions be retained. By their very nature, emergencies cannot be 
exhaustively defined. The example given in the current regulation is 
disaster to a vessel. Under the fixed closing date proposal, this type 
of emergency would remain a basis for modifying the operating dates of 
the locks. Similarly, national defense emergencies, extraordinary 
environmental circumstances, or extraordinary national or regional 
economic circumstances could also invoke the exercise of the Division 
Engineer's authority. As noted above, these examples are not intended 
to be exhaustive or exclusive.

Classification

    1. The undersigned has reviewed this action and hereby certifies 
that it is not subject to the requirements of the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, since it will not exert a 
significant economic impact on a substantial number of small businesses 
or other entities.
    2. The Department of the Army has determined that this regulation 
will not affect the use or value of private property and, therefore, 
does not require a Takings Assessment under Executive Order 12630.
    3. This proposed rule has been determined not to be a major rule 
under Executive Order 12866. A Regulatory Impact Analysis (RIA) 
Statement will not be prepared since the proposed changes will not 
result in significant adverse economic effects identified in the 
Executive Order as grounds for a finding of major action.

Environmental Documentation

    This action was the subject of a FEIS, February 1994, which 
concluded that there would not be significant adverse environmental 
effects due to commencing the opening season of the locks on 21 March--
earlier than the date now proposed. The FEIS is available for review 
upon request from the individual listed under ADDRESSES.

List of Subjects in 33 CFR Part 207

    Navigation (Water), Water Transportation, Vessels.

    For the reasons set out in the preamble, Title 33, Chapter II of 
the 

[[Page 35]]
Code of Federal Regulations is proposed to be amended as follows.

PART 207--[AMENDED]

    1. The authority citation for part 207 continues to read as 
follows:

    Authority: 40 Stat. 266; (33 U.S.C. 1).

    2. Section 207.440 is amended by revising paragraph (u) as follows:


Sec. 207.440  St. Marys Falls Canal and Locks, Michigan; use, 
administration and navigation.

* * * * *
    (u) The locks will be opened and closed to navigation each year as 
provided in paragraphs (u) (1) and (2) of this section except as may be 
authorized by the Division Engineer. Consideration will be given to 
change in these dates in an emergency involving disaster to a vessel or 
other extraordinary circumstances.
    (1) Opening date. At least one lock will be placed in operation for 
the passage of vessels on March 25. Thereafter, additional locks will 
be placed in operation as traffic density demands.
    (2) Closing date. The locks will be maintained in operation only 
for the passage of down bound vessels departing from a Lake Superior 
port before midnight (2400 hours) of January 14, and of upbound vessels 
passing Detour before midnight (2400 hours) of January 15. Vessel 
owners are requested to report in advance to the Engineer in charge at 
Sault Ste. Marie, the name of vessel and time of departure from a Lake 
Superior port on January 14 before midnight, and of vessels passing 
Detour on January 15 before midnight, which may necessitate the 
continued operation of a lock to permit passage of vessel.
* * * * *
    Dated: December 21, 1995.
John H. Zirschky,
Acting Assistant Secretary of the Army (Civil Works).
[FR Doc. 95-31543 Filed 12-29-95; 8:45 am]
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