Safety Zone and Regulated Navigation Area, Chicago Sanitary and Ship Canal, Romeoville, IL, 45318-45323 [E9-21200]

Download as PDF 45318 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG–2009–0789] RIN 1625–AA11 Safety Zone and Regulated Navigation Area, Chicago Sanitary and Ship Canal, Romeoville, IL Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: erowe on DSK5CLS3C1PROD with RULES SUMMARY: The Coast Guard is establishing a safety zone and regulated navigation area on the Chicago Sanitary and Ship Canal near Romeoville, IL. This temporary final rule places navigational and operational restrictions on all vessels transiting the navigable waters located adjacent to and over the U.S. Army Corps of Engineers’ (USACE) electrical dispersal fish barrier system. DATES: This temporary final rule is effective from 5 p.m. on September 2, 2009, until 5 p.m. on September 9, 2009. This temporary final rule is enforceable with actual notice by Coast Guard personnel beginning August 25, 2009. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG–2009– 0789 and are available online by going to http://www.regulations.gov, inserting USCG–2009–0789 in the ‘‘Keyword’’ box, and then clicking ‘‘Search.’’ They are also available for inspection or copying at the Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 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 temporary final rule, call CDR Tim Cummins, Deputy Prevention Division, Ninth Coast Guard District, telephone 216– 902–6045. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–366–9826. SUPPLEMENTARY INFORMATION: Regulatory Information The Coast Guard is issuing this 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 VerDate Nov<24>2008 15:07 Sep 01, 2009 Jkt 217001 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 the U.S. Army Corps of Engineers (USACE) made the decision, without time for a proper notice period, to permanently increase the voltage of the fish barrier to two-volts per inch in response to data which indicates that Asian carp are closer to the Great Lakes waterway system than originally thought. The electric current in the water created by the electrical dispersal barriers coupled with the uncertainty of the effects of the increased voltage poses a safety risk to commercial vessels and recreational boaters who transit the area. Therefore, it would be against the public interest to delay the issuing of this rule. 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 because of the safety risk to commercial vessels and recreational boaters who transit the area. The following discussion and the Background and Purpose section below provide additional support of the Coast Guard’s determination that good cause exists for not publishing a NPRM and for making this rule effective less than 30 days after publication. In 2002, the USACE energized a demonstration electrical dispersal barrier located in the Chicago Sanitary and Ship Canal. The demonstration barrier, commonly referred to as ‘‘Barrier I,’’ generates a low-voltage electric field (one-volt per inch) across the canal, which connects the Illinois River to Lake Michigan. Barrier I was built to block the passage of aquatic nuisance species, such as Asian carp, and prevent them from moving between the Mississippi River basin and Great Lakes via the canal. In 2006, the USACE completed construction of a new barrier, ‘‘Barrier IIA.’’ Because of its design, Barrier IIA can generate a more powerful electric field (up to four-volts per inch), over a larger area within the Chicago Sanitary and Ship Canal, than Barrier I. Testing was conducted by the USACE which indicated that two-volts per inch is the optimal voltage to deter aquatic nuisance species. The USACE’s original plan was to perform testing on the effects of the increased voltage on vessels passing through the fish barrier prior to permanently increasing the voltage. However, after receiving data that the Asian carp were closer to the Great Lakes than expected, the decision was made to immediately energize the PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 barrier to two-volts per inch without prior testing. A comprehensive, independent analysis of Barrier IIA, conducted in 2008 by the USACE at the one-volt per inch level, found a serious risk of injury or death to persons immersed in the water located adjacent to and over the barrier. Additionally, sparking between barges transiting the barrier (a risk to flammable cargoes) occurred at the onevolt per inch level. The Coast Guard and USACE developed regulations and safety guidelines, with stakeholder input, which addressed the risks and hazards associated with operating the barriers at the one-volt per inch level. These regulations were published in 33 CFR 165.923, 70 FR 76692 (Dec 28, 2005) and in a series of temporary final rules: 71 FR 4488 (Jan 27, 2006); 71 FR 19648 (Apr 17, 2006); 73 FR 33337 (Jun 12, 2008); 73 FR 37810 (Jul 2, 2008); 73 FR 45875 (Aug 7, 2008); and 73 FR 63633 (Oct 27, 2008). A temporary interim rule was issued on February 9, 2009 (74 FR 6352). A NPRM was issued on May 26, 2009 (74 FR 24722). The USACE recently notified the Coast Guard that it plans to immediately increase the voltage of Barrier IIA to two-volts per inch on a full-time basis starting August 17, 2009. Both Barrier IIA and Barrier I will operate at the same time; hence, Barrier I will provide a redundant backup to Barrier IIA. In the past, the Coast Guard has advised the USACE that it has no objection to the activation of Barrier IIA and Barrier I at a maximum strength of one-volt per inch. Testing on commercial vessels transiting the canal over the fish barrier was conducted at one-volt per inch indicating that although the barriers create risks to people and vessels, those risks could be mitigated by following certain procedures. These procedures were implemented in a temporary interim rule establishing a regulated navigation area and safety zone that was published in the Federal Register on February 9, 2009 (74 FR 6352) as well as a notice of proposed rulemaking published in the Federal Register on May 26, 2009 (74 FR 24722). However, both of these rulemakings contemplated further testing of the effects of higher voltages on commercial and recreational vessels as well as people. The USACE began initial safety testing in cooperation with the U.S. Coast Guard on August 17, 2009, to test various configurations of commercial tugs and barges passing through the Barriers while it is at increased voltage and operating parameters. However, more time is needed to complete testing and analyze the results in order to E:\FR\FM\02SER1.SGM 02SER1 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations properly identify the potential risks to people and vessels. Therefore, the Coast Guard has determined that a safety zone is necessary until safety tests are completed. The Captain of the Port Lake Michigan retains the authority to permit vessels to enter the safety zone. As safety testing results become available, the Captain of the Port Lake Michigan will make every effort to permit vessels to pass for which there is a decreased risk of injury or property damage. If vessels wish to enter the safety zone they must receive permission from the Captain of the Port Lake Michigan to do so and must follow all orders from the Captain of the Port or her designated onscene representative while in the zone. If, for any reasons, the safety zone is at any time suspended, the terms of the regulated navigation area will apply to all vessels. erowe on DSK5CLS3C1PROD with RULES Background and Purpose 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 nonindigenous aquatic nuisance species through the Chicago Sanitary and Ship Canal. The USACE selected an electric barrier because it is a non-lethal deterrent with a proven history, which does not overtly interfere with navigation in the canal. 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 the Barrier I. The potential field strength for Barrier IIA will be up to four times that of the Barrier I. Barrier IIA was successfully operated for the first time for approximately seven weeks in September and October 2008, while Barrier I was taken down for maintenance. Construction on a third barrier (Barrier IIB) is planned; Barrier IIB would augment the capabilities of Barriers I and IIA. In the spring of 2004, a commercial towboat operator reported an electrical arc between a wire rope and timberhead while making up a tow in the vicinity of the Barrier I. During subsequent USACE safety testing in January 2005, sparking was observed at points where VerDate Nov<24>2008 15:07 Sep 01, 2009 Jkt 217001 metal-to-metal contact occurred between two barges in the barrier field. The electric current in the water also poses a safety risk to commercial and recreational boaters transiting the area. The Navy Experimental Diving Unit (NEDU) was tasked with researching how the electric current from the barriers would affect a human body if immersed in the water. The NEDU final report concluded that the possible effects to a human body if immersed in the water include paralysis of body muscles, inability to breathe, and ventricular fibrillation. A Safety Work Group facilitated by the Coast Guard and in partnership with the USACE and industry initially met in February 2008 and focused on three goals: (1) Education and public outreach, (2) keeping people out of the water, and (3) egress/rescue efforts. The Safety Work Group has regularly been attended by eleven stakeholders. Key partners include the American Waterways Operators, Illinois River Carriers Association, Army Corps of Engineers Chicago District, Coast Guard Marine Safety Unit Chicago, Coast Guard Sector Lake Michigan/Captain of the Port Lake Michigan, and the Ninth Coast Guard District. Based on the safety hazards associated with electric current flowing through navigable waterways and the uncertainty of the effects of higher voltage on people and vessels that pass over and adjacent to the barriers, the Coast Guard is closing the waterway until proper testing can be completed by the USACE. The Coast Guard appreciates the commercial significance of this waterway and will work closely with the USACE to re-open the waterway as soon as possible; however, it is imperative that this safety zone be immediately enacted to avoid loss of life. As soon as safety testing and analysis are completed, the Coast Guard plans on publishing a new temporary interim rule (TIR) with requests for comments. Although the Coast Guard anticipates being able to permit some vessels to transit through the fish barrier after testing is complete, it is currently anticipated any subsequent TIR will continue to place restrictions on vessels including prohibiting some vessels from transiting through the fish barrier entirely. The Coast Guard will then likely follow with a supplemental notice of proposed rulemaking (SNPRM) in order to provide a complete notice and comment period for interested parties. We encourage the public to participate in the rulemaking process by submitting and reviewing comments and related materials at http://www.regulations.gov PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 45319 to the dockets associated with the anticipated TIR and any subsequent NPRM/SNPRM. Discussion of Rule This temporary final rule will suspend 33 CFR 165.T09–1247. This rule also continues the suspension of 33 CFR 165.923 which was earlier suspended from January 18, 2009, until September 30, 2009 (74 FR 6352, Feb. 9, 2005). This rule places a safety zone on all waters located adjacent to and over the electrical dispersal barriers on the Chicago Sanitary and Ship Canal. The safety zone will be enforced at all times the USACE operates the electrical dispersal barrier higher than one-volt per inch until safety testing is conducted that indicates vessels may safely pass. The Coast Guard has deemed this safety zone necessary from August 25, 2009 until September 9, 2009 because safety testing is still being conducted on vessels to determine whether and under what conditions vessels can safely pass adjacent to and over the electrical dispersal barriers. Although every effort will be made to permit vessels to pass as information becomes available; current estimates indicate that testing and analysis will not be completed by the USACE until at least September 9, 2009. Therefore, this safety zone is necessary until that time in order to prevent loss of life and damage to property. This safety zone, which encompasses all the waters of the Chicago Sanitary and Ship Canal located between mile marker 296.0 (approximately 958 feet south of the Romeo Road Bridge) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge), will be enforced by the Captain of the Port Lake Michigan, for such times before, during, and after barrier testing as he or she deems necessary to protect mariners and vessels from damage or injury. The Captain of the Port Lake Michigan will cause notice of enforcement or suspension of enforcement of this safety zone to be made by all appropriate means to effect the widest publicity among the affected segments of the public. Such means of notification will include, but is not limited to, Broadcast Notice to Mariners and Local Notice to Mariners. The Captain of the Port will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone is suspended. In addition, Captain of the Port Lake Michigan maintains 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 E:\FR\FM\02SER1.SGM 02SER1 erowe on DSK5CLS3C1PROD with RULES 45320 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations Captain of the Port Lake Michigan via the Coast Guard Sector Lake Michigan Command Center at (414) 747–7182. In the event that the enforcement of the safety zone is temporarily suspended, this rule implements a regulated navigation area to control the movements of all vessels passing over and adjacent to the barriers. This regulated navigation area closely mirrors those previously implemented in this area. The regulated navigation area encompasses all waters of the Chicago Sanitary and Ship Canal located between mile marker 295.0 (approximately 1.1 miles south of the Romeo Road Bridge) and mile marker 297.5 (approximately 1.3 miles northeast of the Romeo Road Bridge). The requirements placed on commercial vessels include: (1) Vessels engaged in commercial service, as defined in 46 U.S.C. 2101(5), may not pass (meet or overtake) in the regulated navigation area and must make a SECURITE call when approaching the regulated navigation area to announce intentions and work out passing arrangements on either side; (2) commercial tows transiting the regulated navigation area must be made up with wire rope to ensure electrical connectivity between all segments of the tow; and (3) all upbound and down-bound barge tows that contain one or more red flag barges must be assisted by a bow boat until the entire tow is clear of the regulated navigation area. Red flag barges are barges certificated to carry, in bulk, any hazardous material as defined in 46 CFR 150.115. Currently, 46 CFR 150.115 defines hazardous material as: (a) A flammable liquid as defined in 46 CFR 30.10–22 or a combustible liquid as defined in 46 CFR 30.10–15; (b) A material listed in Table 151.05, Table 1 of part 153, or Table 4 of part 154 of Title 46, CFR; or (c) A liquid, liquefied gas, or compressed gas listed in 49 CFR 172.101. The USACE has informed the Coast Guard that they will continue to contract bow boat assistance for barge tows containing one or more red flag barges. Operators of tows containing one or more red flag barges should notify the bow boat contractor at least two hours prior to the need for assistance. The tow operator should then remain in contact with the contractor after the initial call for bow boat assistance and advise the contractor of any delays. Information on how to arrange for bow boat assistance may be obtained by contacting the Army Corps of Engineers at 312–846–5333, during normal working hours. The Coast Guard will also publish this information in its Local Notice to Mariners. VerDate Nov<24>2008 15:07 Sep 01, 2009 Jkt 217001 This temporary final rule places additional restrictions and operating requirements on all vessels within a smaller portion of the regulated navigation area, specifically, the waters between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). Within this smaller area, this temporary final rule prohibits all vessels from loitering, mooring or laying up on the right or left descending banks, or making or breaking tows on the waters between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). In addition, vessels may only enter the waters between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge) 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 canal in the area located between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). The temporary final rule also requires all personnel on open decks to wear a Coast Guard approved Type I personal flotation device while on the waters between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). These restrictions are necessary for safe navigation of the regulated navigation area and to ensure the safety of vessels and their personnel as well as the public’s safety due to the electrical discharges noted during safety tests conducted by the USACE. Deviation from this temporary final rule is prohibited unless specifically authorized by the Commander, Ninth Coast Guard District or his designated representatives. The Commander, Ninth Coast Guard District designates Captain of the Port Lake Michigan and Commanding Officer, Marine Safety Unit Chicago, as his designated representatives for the purposes of the regulated navigation area. Regulatory Analyses We developed this rule after considering numerous statutes and PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders. Regulatory Planning and Review 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. We expect the economic impact of this rule to be minimal. This determination is based the following: (1) The Chicago Sanitary and Ship Canal will be re-opened as soon as is practicable; (2) the Coast Guard expects to be able to re-open the Chicago Sanitary and Ship Canal at least to some commercial traffic as soon as the first phase of safety testing and analysis is complete; (3) if the Chicago Sanitary and Ship Canal is re-opened to commercial traffic, the USACE intends to pay the cost of the bow boat required by barge tows containing one or more red flag barges during the time this rule is effective; (4) vessels may request permission from the Captain of the Port Lake Michigan to transit through the safety zone while the safety zone is enforced; and (5) in exigent circumstances, it may be possible to temporarily drop the voltage of the fish barrier back to one-volt per inch. Because this safety zone must be implemented immediately without a full notice and comment period, the full economic impact of this rule is difficult to determine at this time. The Coast Guard urges interested parties to submit comments that specifically address the economic impacts of permanent or temporary closures of the Chicago Sanitary and Ship Canal. Small Entities The Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612) requires agencies to consider whether regulatory actions would have a significant economic impact on a substantial number of small entities. The term ‘‘small entities’’ comprises small businesses, not-forprofit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. An RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). The Coast Guard determined that this rule is exempt from notice and comment rulemaking pursuant to 5 U.S.C. E:\FR\FM\02SER1.SGM 02SER1 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations 553(b)(B). Therefore, an RFA analysis is not required for this rule. The Coast Guard, nonetheless, expects that this temporary final rule will not have a significant economic impact on a substantial number of small entities. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we offer 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). 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. 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. erowe on DSK5CLS3C1PROD with RULES 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. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. VerDate Nov<24>2008 15:07 Sep 01, 2009 Jkt 217001 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 The Coast Guard recognizes the treaty rights of Native American Tribes. Moreover, the Coast Guard is committed to working with Tribal Governments to implement local policies and to mitigate tribal concerns. We have determined that these regulations and fishing rights protection need not be incompatible. We have also determined that 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. Nevertheless, Indian tribes that have questions concerning the provisions of this rule or options for compliance are encouraged to contact the point of contact listed under FOR FURTHER INFORMATION CONTACT. 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 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 45321 require a Statement of Energy Effects under Executive Order 13211. Technical Standards 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 (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. 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 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 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 rule involves the establishing, disestablishing, or changing of regulated navigation areas and security or safety zones. An environmental analysis checklist and a 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, 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 1. The authority citation for part 165 continues to read as follows: ■ E:\FR\FM\02SER1.SGM 02SER1 45322 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations Authority: 33 U.S.C. 1226, 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. § 165.T09–1247 [Suspended] 2. Section 165.T09–1247 is suspended. ■ 3. A new temporary section 165.T09– 0789 is added as follows: ■ erowe on DSK5CLS3C1PROD with RULES § 165.T09–0789 Safety Zone and Regulated Navigation Area, Chicago Sanitary and Ship Canal, Romeoville, IL. (a) Safety Zone. (1) The following area is a permanent safety zone: All waters of the Chicago Sanitary and Ship Canal located between mile marker 296.0 (approximately 958 feet south of the Romeo Road Bridge) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). (2) Enforcement period. The safety zone will be enforced from 5 p.m. on August 25, 2009, until 5 p.m. on September 9, 2009. (3) Notice of suspension of enforcement. The Captain of the Port Lake Michigan will enforce the safety zone established by this section at all times. However, the Captain of the Port Lake Michigan may temporarily suspend enforcement of the safety zone. If enforcement of the zone is temporarily suspended, the Captain of the Port Lake Michigan will cause a notice of the suspension of enforcement of this safety zone to be made by all appropriate means to effect the widest publicity among 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. The Captain of the Port Lake Michigan will also issue a Broadcast Notice to Mariners and Local Notice to Mariners notifying the public when the temporary suspension of enforcement is over and the zone is once again in operation. (4) Regulations. (i) In accordance with the general regulations in § 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 her on-scene representative. (ii) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Lake Michigan or her on-scene representative. (iii) The ‘‘on-scene representative’’ of the Captain of the Port is any Coast Guard commissioned, warrant or petty VerDate Nov<24>2008 15:07 Sep 01, 2009 Jkt 217001 officer who has been designated by the Captain of the Port to act on her behalf. The on-scene representative of the Captain of the Port 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–FM radio or loudhailer. The Captain of the Port or her on-scene representative may be contacted via VHF–FM radio Channel 16. (iv) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Lake Michigan or her on-scene representative to obtain permission to do so. 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 her on-scene representative. (b) Regulated Navigation Area. The following is a Regulated Navigation Area: All waters of the Chicago Sanitary and Ship Canal, Romeoville, IL located between mile marker 295.0 (approximately 1.1 miles south of the Romeo Road Bridge) and mile marker 297.5 (approximately 1.3 miles northeast of the Romeo Road Bridge). (1) Definitions. The following definitions apply to this section: Bow boat means a towing vessel capable of providing positive control of the bow of a tow containing one or more barges, while transiting the regulated navigation area. The bow boat must be capable of preventing a tow containing one or more barges from coming into contact with the shore and other moored vessels. Designated representatives means the Captain of the Port Lake Michigan and Commanding Officer, Marine Safety Unit Chicago. Hazardous material means any material as defined in 46 CFR 150.115. Red flag barge means any barge certificated to carry any hazardous material in bulk. (2) Notice of enforcement or suspension of enforcement. The Captain of the Port Lake Michigan will enforce the Regulated Navigation Area established by this section only upon notice. Captain of the Port Lake Michigan will cause notice of the enforcement of this regulated navigation area to be made by all appropriate means to effect the widest publicity among 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. The Captain of the Port Lake Michigan will issue a Broadcast Notice to PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 Mariners and Local Notice to Mariners notifying the public when enforcement of these safety zones is suspended. (3) Regulations. (i) The general regulations contained in 33 CFR 165.13 apply. (ii) All up-bound and down-bound barge tows that contain one or more red flag barges transiting through the regulated navigation area must be assisted by a bow boat until the entire tow is clear of the regulated navigation area. (iii) Vessels engaged in commercial service, as defined in 46 U.S.C. 2101(5), may not pass (meet or overtake) in the regulated navigation area and must make a SECURITE call when approaching the regulated navigation area to announce intentions and work out passing arrangements on either side. (iv) Commercial tows transiting the regulated navigation area must be made up with wire rope to ensure electrical connectivity between all segments of the tow. (v) All vessels are prohibited from loitering between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). (vi) Vessels may enter the waters between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge) 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 canal in the area located between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). (vii) All personnel on open decks must wear a Coast Guard approved Type I personal flotation device while in the waters between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). (viii) Vessels may not moor or lay up on the right or left descending banks of the waters between the Romeo Road Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). (ix) Towboats may not make or break tows if any portion of the towboat or tow is located in the waters between the Romeo Road Bridge (approximate mile E:\FR\FM\02SER1.SGM 02SER1 Federal Register / Vol. 74, No. 169 / Wednesday, September 2, 2009 / Rules and Regulations marker 296.18) and mile marker 296.7 (aerial pipeline located approximately 0.51 miles north east of Romeo Road Bridge). (4) Compliance. All persons and vessels must comply with this section and any additional instructions or orders of the Ninth Coast Guard District Commander, or his designated representatives. (5) Waiver. For any vessel, the Ninth Coast Guard District Commander, or his 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: August 24, 2009. Peter V. Neffenger, Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District. [FR Doc. E9–21200 Filed 8–28–09; 4:15 pm] BILLING CODE 4910–15–P Regulatory Information On June 22, 2009, we published a notice of proposed rulemaking (NPRM) entitled Safety Zone; IJSBA World Finals; Lower Colorado River, Lake Havasu, AZ in the Federal Register (74 FR 29447). We received no comments on the proposed rule. No public meeting was requested, and none was held. DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG–2009–0194] RIN 1625–AA00 Safety Zone; IJSBA World Finals, Lower Colorado River, Lake Havasu, AZ Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: erowe on DSK5CLS3C1PROD with RULES SUMMARY: The Coast Guard is establishing a temporary safety zone on the navigable waters of Lake Havasu on the lower Colorado River in Arizona in support of the International Jet Sports Boating Association (IJSBA) World Finals. This temporary safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Persons and vessels will be prohibited from entering into, transiting through, or anchoring within this temporary safety zone unless authorized by the Captain of the Port San Diego or his designated representative. DATES: This rule is effective from October 6, 2009 through October 19, 2009. Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part ADDRESSES: VerDate Nov<24>2008 15:07 Sep 01, 2009 Jkt 217001 of docket USCG–2009–0194 and are available online by going to http:// www.regulations.gov, inserting USCG– 2009–0194 in the ‘‘Keyword’’ box, and then clicking ‘‘Search.’’ This material is also available for inspection or copying at the Docket Management Facility (M– 30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 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 temporary rule, call or e-mail Petty Officer Kristen Beer, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 619–278–7262, e-mail Kristen.A.Beer@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–366– 9826. SUPPLEMENTARY INFORMATION: Background and Purpose The International Jet Sports Boating Association (IJSBA) is sponsoring the IJSBA World Finals. The event will consist of 300 to 750 personal watercrafts racing in a circular course. The race will be broken down into heats of one to 20. The sponsor will provide four course marshals and rescue vessels, as well as four perimeter safety boats for the duration of this event. This safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Discussion of Comments and Changes There were no comments submitted and no changes were made to the regulation. Regulatory Analyses We developed this 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. Regulatory Planning and Review This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 45323 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 so minimal that a full Regulatory Evaluation is unnecessary. This determination is based on the size and location of the safety zone. Commercial vessels will not be hindered by the safety zone. Recreational vessels will not be allowed to transit through the designated safety zone during the specified times unless authorized to do so by the Captain of the Port or his designated representative. 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 owners or operators of vessels intending to transit or anchor in a portion of the lower Colorado River at Lake Havasu from October 6, 2009 through October 19, 2009. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. Vessel traffic can pass safely around the zone. Before the effective period, the Coast Guard will publish a local notice to mariners (LNM). Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), in the NPRM we offered to assist small entities in understanding the rule so that they could 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 E:\FR\FM\02SER1.SGM 02SER1

Agencies

[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Rules and Regulations]
[Pages 45318-45323]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21200]



[[Page 45318]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0789]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a safety zone and regulated 
navigation area on the Chicago Sanitary and Ship Canal near Romeoville, 
IL. This temporary final rule places navigational and operational 
restrictions on all vessels transiting the navigable waters located 
adjacent to and over the U.S. Army Corps of Engineers' (USACE) 
electrical dispersal fish barrier system.

DATES: This temporary final rule is effective from 5 p.m. on September 
2, 2009, until 5 p.m. on September 9, 2009. This temporary final rule 
is enforceable with actual notice by Coast Guard personnel beginning 
August 25, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0789 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-0789 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at the Docket Management Facility (M-30), 
U.S. Department of Transportation, West Building Ground Floor, Room 
W12-140, 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 
temporary final rule, call CDR Tim Cummins, Deputy Prevention Division, 
Ninth Coast Guard District, telephone 216-902-6045. If you have 
questions on viewing the docket, call Renee V. Wright, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    The Coast Guard is issuing this 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 the U.S. Army Corps of Engineers 
(USACE) made the decision, without time for a proper notice period, to 
permanently increase the voltage of the fish barrier to two-volts per 
inch in response to data which indicates that Asian carp are closer to 
the Great Lakes waterway system than originally thought. The electric 
current in the water created by the electrical dispersal barriers 
coupled with the uncertainty of the effects of the increased voltage 
poses a safety risk to commercial vessels and recreational boaters who 
transit the area. Therefore, it would be against the public interest to 
delay the issuing of this rule.
    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 because of the safety risk to 
commercial vessels and recreational boaters who transit the area. The 
following discussion and the Background and Purpose section below 
provide additional support of the Coast Guard's determination that good 
cause exists for not publishing a NPRM and for making this rule 
effective less than 30 days after publication.
    In 2002, the USACE energized a demonstration electrical dispersal 
barrier located in the Chicago Sanitary and Ship Canal. The 
demonstration barrier, commonly referred to as ``Barrier I,'' generates 
a low-voltage electric field (one-volt per inch) across the canal, 
which connects the Illinois River to Lake Michigan. Barrier I was built 
to block the passage of aquatic nuisance species, such as Asian carp, 
and prevent them from moving between the Mississippi River basin and 
Great Lakes via the canal. In 2006, the USACE completed construction of 
a new barrier, ``Barrier IIA.'' Because of its design, Barrier IIA can 
generate a more powerful electric field (up to four-volts per inch), 
over a larger area within the Chicago Sanitary and Ship Canal, than 
Barrier I. Testing was conducted by the USACE which indicated that two-
volts per inch is the optimal voltage to deter aquatic nuisance 
species. The USACE's original plan was to perform testing on the 
effects of the increased voltage on vessels passing through the fish 
barrier prior to permanently increasing the voltage. However, after 
receiving data that the Asian carp were closer to the Great Lakes than 
expected, the decision was made to immediately energize the barrier to 
two-volts per inch without prior testing.
    A comprehensive, independent analysis of Barrier IIA, conducted in 
2008 by the USACE at the one-volt per inch level, found a serious risk 
of injury or death to persons immersed in the water located adjacent to 
and over the barrier. Additionally, sparking between barges transiting 
the barrier (a risk to flammable cargoes) occurred at the one-volt per 
inch level. The Coast Guard and USACE developed regulations and safety 
guidelines, with stakeholder input, which addressed the risks and 
hazards associated with operating the barriers at the one-volt per inch 
level. These regulations were published in 33 CFR 165.923, 70 FR 76692 
(Dec 28, 2005) and in a series of temporary final rules: 71 FR 4488 
(Jan 27, 2006); 71 FR 19648 (Apr 17, 2006); 73 FR 33337 (Jun 12, 2008); 
73 FR 37810 (Jul 2, 2008); 73 FR 45875 (Aug 7, 2008); and 73 FR 63633 
(Oct 27, 2008). A temporary interim rule was issued on February 9, 2009 
(74 FR 6352). A NPRM was issued on May 26, 2009 (74 FR 24722).
    The USACE recently notified the Coast Guard that it plans to 
immediately increase the voltage of Barrier IIA to two-volts per inch 
on a full-time basis starting August 17, 2009. Both Barrier IIA and 
Barrier I will operate at the same time; hence, Barrier I will provide 
a redundant backup to Barrier IIA.
    In the past, the Coast Guard has advised the USACE that it has no 
objection to the activation of Barrier IIA and Barrier I at a maximum 
strength of one-volt per inch. Testing on commercial vessels transiting 
the canal over the fish barrier was conducted at one-volt per inch 
indicating that although the barriers create risks to people and 
vessels, those risks could be mitigated by following certain 
procedures. These procedures were implemented in a temporary interim 
rule establishing a regulated navigation area and safety zone that was 
published in the Federal Register on February 9, 2009 (74 FR 6352) as 
well as a notice of proposed rulemaking published in the Federal 
Register on May 26, 2009 (74 FR 24722).
    However, both of these rulemakings contemplated further testing of 
the effects of higher voltages on commercial and recreational vessels 
as well as people. The USACE began initial safety testing in 
cooperation with the U.S. Coast Guard on August 17, 2009, to test 
various configurations of commercial tugs and barges passing through 
the Barriers while it is at increased voltage and operating parameters. 
However, more time is needed to complete testing and analyze the 
results in order to

[[Page 45319]]

properly identify the potential risks to people and vessels. Therefore, 
the Coast Guard has determined that a safety zone is necessary until 
safety tests are completed.
    The Captain of the Port Lake Michigan retains the authority to 
permit vessels to enter the safety zone. As safety testing results 
become available, the Captain of the Port Lake Michigan will make every 
effort to permit vessels to pass for which there is a decreased risk of 
injury or property damage. If vessels wish to enter the safety zone 
they must receive permission from the Captain of the Port Lake Michigan 
to do so and must follow all orders from the Captain of the Port or her 
designated on-scene representative while in the zone.
    If, for any reasons, the safety zone is at any time suspended, the 
terms of the regulated navigation area will apply to all vessels.

Background and Purpose

    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. The USACE selected an electric barrier because it is a 
non-lethal deterrent with a proven history, which does not overtly 
interfere with navigation in the canal.
    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 the Barrier I. The potential field strength 
for Barrier IIA will be up to four times that of the Barrier I. Barrier 
IIA was successfully operated for the first time for approximately 
seven weeks in September and October 2008, while Barrier I was taken 
down for maintenance. Construction on a third barrier (Barrier IIB) is 
planned; Barrier IIB would augment the capabilities of Barriers I and 
IIA.
    In the spring of 2004, a commercial towboat operator reported an 
electrical arc between a wire rope and timberhead while making up a tow 
in the vicinity of the Barrier I. During subsequent USACE safety 
testing in January 2005, sparking was observed at points where metal-
to-metal contact occurred between two barges in the barrier field.
    The electric current in the water also poses a safety risk to 
commercial and recreational boaters transiting the area. The Navy 
Experimental Diving Unit (NEDU) was tasked with researching how the 
electric current from the barriers would affect a human body if 
immersed in the water. The NEDU final report concluded that the 
possible effects to a human body if immersed in the water include 
paralysis of body muscles, inability to breathe, and ventricular 
fibrillation.
    A Safety Work Group facilitated by the Coast Guard and in 
partnership with the USACE and industry initially met in February 2008 
and focused on three goals: (1) Education and public outreach, (2) 
keeping people out of the water, and (3) egress/rescue efforts. The 
Safety Work Group has regularly been attended by eleven stakeholders. 
Key partners include the American Waterways Operators, Illinois River 
Carriers Association, Army Corps of Engineers Chicago District, Coast 
Guard Marine Safety Unit Chicago, Coast Guard Sector Lake Michigan/
Captain of the Port Lake Michigan, and the Ninth Coast Guard District.
    Based on the safety hazards associated with electric current 
flowing through navigable waterways and the uncertainty of the effects 
of higher voltage on people and vessels that pass over and adjacent to 
the barriers, the Coast Guard is closing the waterway until proper 
testing can be completed by the USACE. The Coast Guard appreciates the 
commercial significance of this waterway and will work closely with the 
USACE to re-open the waterway as soon as possible; however, it is 
imperative that this safety zone be immediately enacted to avoid loss 
of life.
    As soon as safety testing and analysis are completed, the Coast 
Guard plans on publishing a new temporary interim rule (TIR) with 
requests for comments. Although the Coast Guard anticipates being able 
to permit some vessels to transit through the fish barrier after 
testing is complete, it is currently anticipated any subsequent TIR 
will continue to place restrictions on vessels including prohibiting 
some vessels from transiting through the fish barrier entirely. The 
Coast Guard will then likely follow with a supplemental notice of 
proposed rulemaking (SNPRM) in order to provide a complete notice and 
comment period for interested parties. We encourage the public to 
participate in the rulemaking process by submitting and reviewing 
comments and related materials at http://www.regulations.gov to the 
dockets associated with the anticipated TIR and any subsequent NPRM/
SNPRM.

Discussion of Rule

    This temporary final rule will suspend 33 CFR 165.T09-1247. This 
rule also continues the suspension of 33 CFR 165.923 which was earlier 
suspended from January 18, 2009, until September 30, 2009 (74 FR 6352, 
Feb. 9, 2005). This rule places a safety zone on all waters located 
adjacent to and over the electrical dispersal barriers on the Chicago 
Sanitary and Ship Canal. The safety zone will be enforced at all times 
the USACE operates the electrical dispersal barrier higher than one-
volt per inch until safety testing is conducted that indicates vessels 
may safely pass. The Coast Guard has deemed this safety zone necessary 
from August 25, 2009 until September 9, 2009 because safety testing is 
still being conducted on vessels to determine whether and under what 
conditions vessels can safely pass adjacent to and over the electrical 
dispersal barriers. Although every effort will be made to permit 
vessels to pass as information becomes available; current estimates 
indicate that testing and analysis will not be completed by the USACE 
until at least September 9, 2009. Therefore, this safety zone is 
necessary until that time in order to prevent loss of life and damage 
to property.
    This safety zone, which encompasses all the waters of the Chicago 
Sanitary and Ship Canal located between mile marker 296.0 
(approximately 958 feet south of the Romeo Road Bridge) and mile marker 
296.7 (aerial pipeline located approximately 0.51 miles north east of 
Romeo Road Bridge), will be enforced by the Captain of the Port Lake 
Michigan, for such times before, during, and after barrier testing as 
he or she deems necessary to protect mariners and vessels from damage 
or injury. The Captain of the Port Lake Michigan will cause notice of 
enforcement or suspension of enforcement of this safety zone to be made 
by all appropriate means to effect the widest publicity among the 
affected segments of the public. Such means of notification will 
include, but is not limited to, Broadcast Notice to Mariners and Local 
Notice to Mariners. The Captain of the Port will issue a Broadcast 
Notice to Mariners notifying the public when enforcement of the safety 
zone is suspended. In addition, Captain of the Port Lake Michigan 
maintains 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

[[Page 45320]]

Captain of the Port Lake Michigan via the Coast Guard Sector Lake 
Michigan Command Center at (414) 747-7182.
    In the event that the enforcement of the safety zone is temporarily 
suspended, this rule implements a regulated navigation area to control 
the movements of all vessels passing over and adjacent to the barriers. 
This regulated navigation area closely mirrors those previously 
implemented in this area. The regulated navigation area encompasses all 
waters of the Chicago Sanitary and Ship Canal located between mile 
marker 295.0 (approximately 1.1 miles south of the Romeo Road Bridge) 
and mile marker 297.5 (approximately 1.3 miles northeast of the Romeo 
Road Bridge). The requirements placed on commercial vessels include: 
(1) Vessels engaged in commercial service, as defined in 46 U.S.C. 
2101(5), may not pass (meet or overtake) in the regulated navigation 
area and must make a SECURITE call when approaching the regulated 
navigation area to announce intentions and work out passing 
arrangements on either side; (2) commercial tows transiting the 
regulated navigation area must be made up with wire rope to ensure 
electrical connectivity between all segments of the tow; and (3) all 
up-bound and down-bound barge tows that contain one or more red flag 
barges must be assisted by a bow boat until the entire tow is clear of 
the regulated navigation area. Red flag barges are barges certificated 
to carry, in bulk, any hazardous material as defined in 46 CFR 150.115. 
Currently, 46 CFR 150.115 defines hazardous material as:
    (a) A flammable liquid as defined in 46 CFR 30.10-22 or a 
combustible liquid as defined in 46 CFR 30.10-15;
    (b) A material listed in Table 151.05, Table 1 of part 153, or 
Table 4 of part 154 of Title 46, CFR; or
    (c) A liquid, liquefied gas, or compressed gas listed in 49 CFR 
172.101.
    The USACE has informed the Coast Guard that they will continue to 
contract bow boat assistance for barge tows containing one or more red 
flag barges. Operators of tows containing one or more red flag barges 
should notify the bow boat contractor at least two hours prior to the 
need for assistance. The tow operator should then remain in contact 
with the contractor after the initial call for bow boat assistance and 
advise the contractor of any delays. Information on how to arrange for 
bow boat assistance may be obtained by contacting the Army Corps of 
Engineers at 312-846-5333, during normal working hours. The Coast Guard 
will also publish this information in its Local Notice to Mariners.
    This temporary final rule places additional restrictions and 
operating requirements on all vessels within a smaller portion of the 
regulated navigation area, specifically, the waters between the Romeo 
Road Bridge (approximate mile marker 296.18) and mile marker 296.7 
(aerial pipeline located approximately 0.51 miles north east of Romeo 
Road Bridge). Within this smaller area, this temporary final rule 
prohibits all vessels from loitering, mooring or laying up on the right 
or left descending banks, or making or breaking tows on the waters 
between the Romeo Road Bridge (approximate mile marker 296.18) and mile 
marker 296.7 (aerial pipeline located approximately 0.51 miles north 
east of Romeo Road Bridge). In addition, vessels may only enter the 
waters between the Romeo Road Bridge (approximate mile marker 296.18) 
and mile marker 296.7 (aerial pipeline located approximately 0.51 miles 
north east of Romeo Road Bridge) 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 canal in the area 
located between the Romeo Road Bridge (approximate mile marker 296.18) 
and mile marker 296.7 (aerial pipeline located approximately 0.51 miles 
north east of Romeo Road Bridge). The temporary final rule also 
requires all personnel on open decks to wear a Coast Guard approved 
Type I personal flotation device while on the waters between the Romeo 
Road Bridge (approximate mile marker 296.18) and mile marker 296.7 
(aerial pipeline located approximately 0.51 miles north east of Romeo 
Road Bridge).
    These restrictions are necessary for safe navigation of the 
regulated navigation area and to ensure the safety of vessels and their 
personnel as well as the public's safety due to the electrical 
discharges noted during safety tests conducted by the USACE. Deviation 
from this temporary final rule is prohibited unless specifically 
authorized by the Commander, Ninth Coast Guard District or his 
designated representatives. The Commander, Ninth Coast Guard District 
designates Captain of the Port Lake Michigan and Commanding Officer, 
Marine Safety Unit Chicago, as his designated representatives for the 
purposes of the regulated navigation area.

Regulatory Analyses

    We developed this 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.

Regulatory Planning and Review

    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.
    We expect the economic impact of this rule to be minimal. This 
determination is based the following: (1) The Chicago Sanitary and Ship 
Canal will be re-opened as soon as is practicable; (2) the Coast Guard 
expects to be able to re-open the Chicago Sanitary and Ship Canal at 
least to some commercial traffic as soon as the first phase of safety 
testing and analysis is complete; (3) if the Chicago Sanitary and Ship 
Canal is re-opened to commercial traffic, the USACE intends to pay the 
cost of the bow boat required by barge tows containing one or more red 
flag barges during the time this rule is effective; (4) vessels may 
request permission from the Captain of the Port Lake Michigan to 
transit through the safety zone while the safety zone is enforced; and 
(5) in exigent circumstances, it may be possible to temporarily drop 
the voltage of the fish barrier back to one-volt per inch.
    Because this safety zone must be implemented immediately without a 
full notice and comment period, the full economic impact of this rule 
is difficult to determine at this time. The Coast Guard urges 
interested parties to submit comments that specifically address the 
economic impacts of permanent or temporary closures of the Chicago 
Sanitary and Ship Canal.

Small Entities

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires 
agencies to consider whether regulatory actions 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. An RFA analysis is not required when a 
rule is exempt from notice and comment rulemaking under 5 U.S.C. 
553(b). The Coast Guard determined that this rule is exempt from notice 
and comment rulemaking pursuant to 5 U.S.C.

[[Page 45321]]

553(b)(B). Therefore, an RFA analysis is not required for this rule. 
The Coast Guard, nonetheless, expects that this temporary final rule 
will not have a significant economic impact on a substantial number of 
small entities.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer 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). 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.

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. 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

    The Coast Guard recognizes the treaty rights of Native American 
Tribes. Moreover, the Coast Guard is committed to working with Tribal 
Governments to implement local policies and to mitigate tribal 
concerns. We have determined that these regulations and fishing rights 
protection need not be incompatible. We have also determined that 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. Nevertheless, Indian tribes 
that have questions concerning the provisions of this rule or options 
for compliance are encouraged to contact the point of contact listed 
under FOR FURTHER INFORMATION CONTACT.

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.

Technical Standards

    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 (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

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 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 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 rule involves the establishing, 
disestablishing, or changing of regulated navigation areas and security 
or safety zones. An environmental analysis checklist and a 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, Security measures, 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:


[[Page 45322]]


    Authority:  33 U.S.C. 1226, 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.


Sec.  165.T09-1247  [Suspended]

0
2. Section 165.T09-1247 is suspended.

0
3. A new temporary section 165.T09-0789 is added as follows:


Sec.  165.T09-0789  Safety Zone and Regulated Navigation Area, Chicago 
Sanitary and Ship Canal, Romeoville, IL.

    (a) Safety Zone. (1) The following area is a permanent safety zone: 
All waters of the Chicago Sanitary and Ship Canal located between mile 
marker 296.0 (approximately 958 feet south of the Romeo Road Bridge) 
and mile marker 296.7 (aerial pipeline located approximately 0.51 miles 
north east of Romeo Road Bridge).
    (2) Enforcement period. The safety zone will be enforced from 5 
p.m. on August 25, 2009, until 5 p.m. on September 9, 2009.
    (3) Notice of suspension of enforcement. The Captain of the Port 
Lake Michigan will enforce the safety zone established by this section 
at all times. However, the Captain of the Port Lake Michigan may 
temporarily suspend enforcement of the safety zone. If enforcement of 
the zone is temporarily suspended, the Captain of the Port Lake 
Michigan will cause a notice of the suspension of enforcement of this 
safety zone to be made by all appropriate means to effect the widest 
publicity among 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. The Captain of the Port Lake Michigan will also issue a 
Broadcast Notice to Mariners and Local Notice to Mariners notifying the 
public when the temporary suspension of enforcement is over and the 
zone is once again in operation.
    (4) Regulations. (i) 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 her on-scene representative.
    (ii) This safety zone is closed to all vessel traffic, except as 
may be permitted by the Captain of the Port Lake Michigan or her on-
scene representative.
    (iii) The ``on-scene representative'' of the Captain of the Port is 
any Coast Guard commissioned, warrant or petty officer who has been 
designated by the Captain of the Port to act on her behalf. The on-
scene representative of the Captain of the Port 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-FM radio or loudhailer. 
The Captain of the Port or her on-scene representative may be contacted 
via VHF-FM radio Channel 16.
    (iv) Vessel operators desiring to enter or operate within the 
safety zone shall contact the Captain of the Port Lake Michigan or her 
on-scene representative to obtain permission to do so. 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 her on-scene representative.
    (b) Regulated Navigation Area. The following is a Regulated 
Navigation Area: All waters of the Chicago Sanitary and Ship Canal, 
Romeoville, IL located between mile marker 295.0 (approximately 1.1 
miles south of the Romeo Road Bridge) and mile marker 297.5 
(approximately 1.3 miles northeast of the Romeo Road Bridge).
    (1) Definitions. The following definitions apply to this section:
    Bow boat means a towing vessel capable of providing positive 
control of the bow of a tow containing one or more barges, while 
transiting the regulated navigation area. The bow boat must be capable 
of preventing a tow containing one or more barges from coming into 
contact with the shore and other moored vessels.
    Designated representatives means the Captain of the Port Lake 
Michigan and Commanding Officer, Marine Safety Unit Chicago.
    Hazardous material means any material as defined in 46 CFR 150.115.
    Red flag barge means any barge certificated to carry any hazardous 
material in bulk.
    (2) Notice of enforcement or suspension of enforcement. The Captain 
of the Port Lake Michigan will enforce the Regulated Navigation Area 
established by this section only upon notice. Captain of the Port Lake 
Michigan will cause notice of the enforcement of this regulated 
navigation area to be made by all appropriate means to effect the 
widest publicity among 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. The Captain of the Port Lake Michigan will issue a Broadcast 
Notice to Mariners and Local Notice to Mariners notifying the public 
when enforcement of these safety zones is suspended.
    (3) Regulations. (i) The general regulations contained in 33 CFR 
165.13 apply.
    (ii) All up-bound and down-bound barge tows that contain one or 
more red flag barges transiting through the regulated navigation area 
must be assisted by a bow boat until the entire tow is clear of the 
regulated navigation area.
    (iii) Vessels engaged in commercial service, as defined in 46 
U.S.C. 2101(5), may not pass (meet or overtake) in the regulated 
navigation area and must make a SECURITE call when approaching the 
regulated navigation area to announce intentions and work out passing 
arrangements on either side.
    (iv) Commercial tows transiting the regulated navigation area must 
be made up with wire rope to ensure electrical connectivity between all 
segments of the tow.
    (v) All vessels are prohibited from loitering between the Romeo 
Road Bridge (approximate mile marker 296.18) and mile marker 296.7 
(aerial pipeline located approximately 0.51 miles north east of Romeo 
Road Bridge).
    (vi) Vessels may enter the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.51 miles north east of Romeo Road Bridge) 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 canal in the area located between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.51 miles north east of Romeo Road Bridge).
    (vii) All personnel on open decks must wear a Coast Guard approved 
Type I personal flotation device while in the waters between the Romeo 
Road Bridge (approximate mile marker 296.18) and mile marker 296.7 
(aerial pipeline located approximately 0.51 miles north east of Romeo 
Road Bridge).
    (viii) Vessels may not moor or lay up on the right or left 
descending banks of the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.51 miles north east of Romeo Road Bridge).
    (ix) Towboats may not make or break tows if any portion of the 
towboat or tow is located in the waters between the Romeo Road Bridge 
(approximate mile

[[Page 45323]]

marker 296.18) and mile marker 296.7 (aerial pipeline located 
approximately 0.51 miles north east of Romeo Road Bridge).
    (4) Compliance. All persons and vessels must comply with this 
section and any additional instructions or orders of the Ninth Coast 
Guard District Commander, or his designated representatives.
    (5) Waiver. For any vessel, the Ninth Coast Guard District 
Commander, or his 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: August 24, 2009.
Peter V. Neffenger,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. E9-21200 Filed 8-28-09; 4:15 pm]
BILLING CODE 4910-15-P