Safety Zone and Regulated Navigation Area, Chicago Sanitary and Ship Canal, Romeoville, IL, 58545-58550 [E9-27219]

Download as PDF 58545 Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / Rules and Regulations 3. In appendix C to part 4022, Rate Set 194, as set forth below, is added to the table. ■ Appendix C to Part 4022—Lump Sum Interest Rates for Private-Sector Payments * For plans with a valuation date Rate set On or after * Before * 194 2.50 DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG–2009–0942] RIN 1625–AA11 Safety Zone and Regulated Navigation Area, Chicago Sanitary and Ship Canal, Romeoville, IL Coast Guard, DHS. Temporary final rule. AGENCY: mstockstill on DSKH9S0YB1PROD 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 November 13, 2009, until 5 p.m. on November 20, 2009. This temporary final rule is enforceable with actual notice by Coast Guard personnel beginning October 16, 2009. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG–2009– 0942 and are available online by going to http://www.regulations.gov, inserting USCG–2009–0942 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 17:06 Nov 12, 2009 Immediate annuity rate (percent) 1–1–10 BILLING CODE 7709–01–P VerDate Nov<24>2008 * * 12–1–09 Issued in Washington, DC, on this 5th day of November 2009. Vincent K. Snowbarger, Acting Director, Pension Benefit Guaranty Corporation. [FR Doc. E9–27221 Filed 11–12–09; 8:45 am] ACTION: * Jkt 220001 * * Deferred annuities (percent) i1 i2 * 4.00 i3 4.00 * 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 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 n1 * 4.00 n2 * 7 8 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 onevolt per inch level. The Coast Guard and USACE developed regulations and safety guidelines, with stakeholder E:\FR\FM\13NOR1.SGM 13NOR1 mstockstill on DSKH9S0YB1PROD with RULES 58546 Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / Rules and Regulations 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). Finally, an NPRM was issued on May 26, 2009 (74 FR 24722). In early August, 2009, the USACE notified the Coast Guard that it planned 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 back up 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 mitigation procedures for the barrier operating at one volt per inch 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 an NPRM published in the Federal Register on May 26, 2009 (74 FR 24722). However, both of these rulemakings reflected the prior operating parameters of the dispersal barriers and contemplated further testing of the effects of higher voltages on commercial and recreational vessels as well as people. The USACE began safety testing in consultation with the U.S. Coast Guard on August 17, 2009, to test various configurations of commercial tugs and barges as well as recreational vessels with non-conductive hulls passing through the Barriers at increased voltage and operating parameters. Because the USACE decided that the voltage and operating parameters had to be immediately increased prior to the completion of safety testing, the USCG determined that temporary closure of the canal to all vessels through a safety zone was necessary until the risks were better understood. This resulted in successive temporary final rules that suspended the VerDate Nov<24>2008 17:06 Nov 12, 2009 Jkt 220001 prior temporary interim rule. These temporary final rules enacting safety zones were published in the Federal Register on August 26, 2009 (74 FR 43055), September 02, 2009 (74 FR 45318) and September 29, 2009 (74 FR 49815). Because testing and analysis of the risks to persons and vessels are ongoing and immediate action is needed to prevent injury to people and vessels, it was not possible to provide a full notice and comment period. The Captain of the Port Lake Michigan retains the authority to permit vessels to enter the safety zone. As safety testing results continue to be analyzed and become available, the Captain of the Port Lake Michigan will make every effort to permit vessels to pass when risk mitigation measures can be safely implemented to decrease 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 Lake Michigan 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. The Captain of the Pork Lake Michigan will cause notice of the enforcement of the regulated navigation area to be made by all appropriate means to effect the widest publicity among the affected segments of the public. 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 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 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 and analysis of such 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 E:\FR\FM\13NOR1.SGM 13NOR1 Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / Rules and Regulations mstockstill on DSKH9S0YB1PROD with RULES 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. Affected parties are reminded that the USACE may again raise the operating parameters of the fish barrier in response to ongoing tests regarding the effectiveness of the barrier on the Asian Carp. If this occurs, it is possible that fewer vessels will be given permission to enter the safety zone until further safety testing and analysis can be completed and current timelines for a final rule will be extended. Discussion of Rule This rule suspends 33 CFR 165.923 until 5 p.m. on November 20, 2009. 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 October 16, 2009, until November 20, 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 November 20, 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 VerDate Nov<24>2008 17:06 Nov 12, 2009 Jkt 220001 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 affect 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 Lake Michigan 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 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. The Captain of the Port Lake Michigan will cause notice of the enforcement of the regulated navigation area to be made by all appropriate means to effect the widest publicity among the affected segments of the public. 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 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 58547 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 flammable liquid as defined in 46 CFR 30.10–22 or a combustible liquid as defined in 46 CFR 30.10–15; • A material listed in Table 151.05, Table 1 of part 153, or Table 4 of part 154 of Title 46, CFR; or • A liquid, liquefied gas, or compressed gas listed in 49 CFR 172.101. In the past, the USACE contracted for bow boat assistance for barge tows containing one or more red flag barges. Upon exhaustion of USACE funding, bow boats will no longer be available through the USACE. All mariners are reminded that the Coast Guard does not provide bow boat assistance. Mariners should be ready to arrange for their own bow boat assistance. Operators of tows containing one or more red flag barges should notify a 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. 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 E:\FR\FM\13NOR1.SGM 13NOR1 58548 Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / Rules and Regulations 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. mstockstill on DSKH9S0YB1PROD with RULES 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) Initial test results at the current operating parameters of two volts per inch indicate that the majority of commercial and recreational vessels that regularly transit the Chicago Sanitary and Ship Canal will be permitted to enter the safety zone under certain conditions; (2) those vessels that will not be permitted to pass through the barrier may be permitted, on a case by case basis, to pass via a dead ship tow by a commercial vessel that is able to transit; and, (3) 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 VerDate Nov<24>2008 17:06 Nov 12, 2009 Jkt 220001 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. Comments can be made online by going to http:// www.regulations.gov, inserting USCG– 2009–0942 in the ‘‘Keyword’’ box, and then clicking ‘‘Search.’’ 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. 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. 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 Frm 00012 Fmt 4700 Sfmt 4700 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 Assistance for Small Entities PO 00000 Reduction Act of 1995 (44 U.S.C. 3501– 3520). 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 E:\FR\FM\13NOR1.SGM 13NOR1 Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / Rules and Regulations 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. mstockstill on DSKH9S0YB1PROD with RULES 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 VerDate Nov<24>2008 17:06 Nov 12, 2009 Jkt 220001 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: ■ 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. § 165.923 [Suspended] 2. Section 165.923 is suspended until November 20, 2009. ■ 3. Add temporary § 165.T09–0942 as follows: ■ § 165.T09–0942 Safety Zone and Regulated Navigation Area, Chicago Sanitary and Ship Canal, Romeoville, IL. (a) Safety Zone. (1) The following area is a temporary 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 October 16, 2009, until 5 p.m. on November 20, 2009. This safety zone is enforceable with actual notice by Coast Guard personnel beginning October 16, 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 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 58549 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 officer who has been designated by the Captain of the Port Lake Michigan to act on her behalf. The on-scene representative of the Captain of the Port Lake Michigan will be aboard a Coast Guard, Coast Guard Auxiliary, or other designated vessel or will be on shore and will communicate with vessels via VHF–FM radio or loudhailer. The Captain of the Port Lake Michigan 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. (v) If a vessel is permitted by the Captain of the Port Lake Michigan or her on-scene representative to transit the safety zone, all personnel on open decks must wear a Coast Guard approved Type I personal flotation device while in the safety zone. (5) Persons on board any vessel transiting this safety zone in accordance with the rule or otherwise are advised they do so at their own risk. (b) Regulated Navigation Area. The following is a Regulated Navigation Area: All waters of the Chicago Sanitary E:\FR\FM\13NOR1.SGM 13NOR1 mstockstill on DSKH9S0YB1PROD with RULES 58550 Federal Register / Vol. 74, No. 218 / Friday, November 13, 2009 / Rules and Regulations 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 this regulated navigation area 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 VerDate Nov<24>2008 17:06 Nov 12, 2009 Jkt 220001 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 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. Any person on board any vessel transiting this regulated navigation area in accordance with this rule or otherwise does so at their own risk. (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. PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 Dated: October 16, 2009. D.R. Callahan, Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District, Acting. [FR Doc. E9–27219 Filed 11–12–09; 8:45 am] BILLING CODE 4910–15–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG–2009–0949] RIN 1625–AA00 Safety Zone; Fireworks Displays, Potomac River, National Harbor, MD Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: SUMMARY: The Coast Guard is establishing a temporary safety zone upon specified waters of the Potomac River. This action is necessary to provide for the safety of life on navigable waters during fireworks displays launched from discharge sites located at National Harbor, in Prince Georges County, Maryland. This safety zone is intended to protect the maritime public in a portion of the Potomac River. DATES: This rule is effective from 6 p.m. November 19, 2009 through 8 p.m. November 28, 2009. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG–2009– 0949 and are available online by going to http://www.regulations.gov, inserting USCG–2009–0949 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 rule, call or e-mail Mr. Ronald L. Houck, Sector Baltimore Waterways Management Division, Coast Guard; telephone 410–576–2674, e-mail Ronald.L.Houck@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–366– 9826. SUPPLEMENTARY INFORMATION: E:\FR\FM\13NOR1.SGM 13NOR1

Agencies

[Federal Register Volume 74, Number 218 (Friday, November 13, 2009)]
[Rules and Regulations]
[Pages 58545-58550]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27219]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-0942]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

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 November 
13, 2009, until 5 p.m. on November 20, 2009. This temporary final rule 
is enforceable with actual notice by Coast Guard personnel beginning 
October 16, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0942 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-0942 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

[[Page 58546]]

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). Finally, an 
NPRM was issued on May 26, 2009 (74 FR 24722).
    In early August, 2009, the USACE notified the Coast Guard that it 
planned 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 back up 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 mitigation procedures for the barrier operating at 
one volt per inch 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 an NPRM published in the Federal Register on May 26, 2009 (74 
FR 24722).
    However, both of these rulemakings reflected the prior operating 
parameters of the dispersal barriers and contemplated further testing 
of the effects of higher voltages on commercial and recreational 
vessels as well as people. The USACE began safety testing in 
consultation with the U.S. Coast Guard on August 17, 2009, to test 
various configurations of commercial tugs and barges as well as 
recreational vessels with non-conductive hulls passing through the 
Barriers at increased voltage and operating parameters. Because the 
USACE decided that the voltage and operating parameters had to be 
immediately increased prior to the completion of safety testing, the 
USCG determined that temporary closure of the canal to all vessels 
through a safety zone was necessary until the risks were better 
understood. This resulted in successive temporary final rules that 
suspended the prior temporary interim rule. These temporary final rules 
enacting safety zones were published in the Federal Register on August 
26, 2009 (74 FR 43055), September 02, 2009 (74 FR 45318) and September 
29, 2009 (74 FR 49815).
    Because testing and analysis of the risks to persons and vessels 
are ongoing and immediate action is needed to prevent injury to people 
and vessels, it was not possible to provide a full notice and comment 
period. The Captain of the Port Lake Michigan retains the authority to 
permit vessels to enter the safety zone. As safety testing results 
continue to be analyzed and become available, the Captain of the Port 
Lake Michigan will make every effort to permit vessels to pass when 
risk mitigation measures can be safely implemented to decrease 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 Lake 
Michigan 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. The 
Captain of the Pork Lake Michigan will cause notice of the enforcement 
of the regulated navigation area to be made by all appropriate means to 
effect the widest publicity among the affected segments of the public.

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 and analysis of such 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

[[Page 58547]]

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.
    Affected parties are reminded that the USACE may again raise the 
operating parameters of the fish barrier in response to ongoing tests 
regarding the effectiveness of the barrier on the Asian Carp. If this 
occurs, it is possible that fewer vessels will be given permission to 
enter the safety zone until further safety testing and analysis can be 
completed and current timelines for a final rule will be extended.

Discussion of Rule

    This rule suspends 33 CFR 165.923 until 5 p.m. on November 20, 
2009. 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 
October 16, 2009, until November 20, 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 November 20, 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 affect 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 Lake Michigan 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 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. 
The Captain of the Port Lake Michigan will cause notice of the 
enforcement of the regulated navigation area to be made by all 
appropriate means to effect the widest publicity among the affected 
segments of the public. 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 Sec.  150.115. Currently, 46 CFR 150.115 defines hazardous material 
as:
     A flammable liquid as defined in 46 CFR 30.10-22 or a 
combustible liquid as defined in 46 CFR 30.10-15;
     A material listed in Table 151.05, Table 1 of part 153, or 
Table 4 of part 154 of Title 46, CFR; or
     A liquid, liquefied gas, or compressed gas listed in 49 
CFR 172.101.

In the past, the USACE contracted for bow boat assistance for barge 
tows containing one or more red flag barges. Upon exhaustion of USACE 
funding, bow boats will no longer be available through the USACE. All 
mariners are reminded that the Coast Guard does not provide bow boat 
assistance. Mariners should be ready to arrange for their own bow boat 
assistance. Operators of tows containing one or more red flag barges 
should notify a 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.
    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

[[Page 58548]]

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) Initial test results at the 
current operating parameters of two volts per inch indicate that the 
majority of commercial and recreational vessels that regularly transit 
the Chicago Sanitary and Ship Canal will be permitted to enter the 
safety zone under certain conditions; (2) those vessels that will not 
be permitted to pass through the barrier may be permitted, on a case by 
case basis, to pass via a dead ship tow by a commercial vessel that is 
able to transit; and, (3) 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. Comments can be made online by going to http://www.regulations.gov, inserting USCG-2009-0942 in the ``Keyword'' box, 
and then clicking ``Search.''

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. 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

[[Page 58549]]

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:

    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.  165.923  [Suspended]

0
2. Section 165.923 is suspended until November 20, 2009.

0
3. Add temporary Sec.  165.T09-0942 as follows:


Sec.  165.T09-0942  Safety Zone and Regulated Navigation Area, Chicago 
Sanitary and Ship Canal, Romeoville, IL.

    (a) Safety Zone. (1) The following area is a temporary 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 October 16, 2009, until 5 p.m. on November 20, 2009. This 
safety zone is enforceable with actual notice by Coast Guard personnel 
beginning October 16, 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 Lake Michigan to act on her 
behalf. The on-scene representative of the Captain of the Port Lake 
Michigan will be aboard a Coast Guard, Coast Guard Auxiliary, or other 
designated vessel or will be on shore and will communicate with vessels 
via VHF-FM radio or loudhailer. The Captain of the Port Lake Michigan 
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.
    (v) If a vessel is permitted by the Captain of the Port Lake 
Michigan or her on-scene representative to transit the safety zone, all 
personnel on open decks must wear a Coast Guard approved Type I 
personal flotation device while in the safety zone.
    (5) Persons on board any vessel transiting this safety zone in 
accordance with the rule or otherwise are advised they do so at their 
own risk.
    (b) Regulated Navigation Area. The following is a Regulated 
Navigation Area: All waters of the Chicago Sanitary

[[Page 58550]]

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 this regulated navigation area 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 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. Any person 
on board any vessel transiting this regulated navigation area in 
accordance with this rule or otherwise does so at their own risk.
    (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: October 16, 2009.
D.R. Callahan,
Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District, 
Acting.
[FR Doc. E9-27219 Filed 11-12-09; 8:45 am]
BILLING CODE 4910-15-P