
[Federal Register: February 9, 2009 (Volume 74, Number 25)]
[Rules and Regulations]               
[Page 6352-6357]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09fe09-3]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1247]
RIN 1625-AA11

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

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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

DATES: This temporary interim rule is effective from 11:59 p.m. on 
January 17, 2009, until September 30, 2009. Comments and related 
material must reach the Docket Management Facility on or before April 
10, 2009.

ADDRESSES: You may submit comments identified by docket number USCG-
2008-1247 using any one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov.
    (2) Fax: 202-493-2251.
    (3) Mail: Docket Management Facility (M-30), U.S. Department of 
Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
    (4) Hand delivery: Same as mail address above, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The telephone 
number is 202-366-9329. To avoid duplication, please use only one of 
these methods. For instructions on submitting comments, see the 
``Public Participation and Request for Comments''.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary 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: 

Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting 
comments and related materials. All comments received will be posted, 
without change, to http://www.regulations.gov and will include any 
personal information you have provided.

Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (USCG-2008-1247), indicate the specific section of this 
document to which each comment applies, and provide a reason for each 
suggestion or recommendation. You may submit your comments and material 
online, or by fax, mail or hand delivery, but please use only one of 
these means. We recommend that you

[[Page 6353]]

include your name and a mailing address, an e-mail address, or a 
telephone number in the body of your document so that we can contact 
you if we have questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert ``USCG-2008-1247'' in the Docket ID box, press Enter, 
and then click on the balloon shape in the Actions column. If you 
submit your comments by mail or hand delivery, submit them in an 
unbound format, no larger than 8\1/2\ by 11 inches, suitable for 
copying and electronic filing. If you submit them by mail and would 
like to know that they reached the Facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period and may change this rule 
based on your comments.

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2008-1247 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit 
either the Docket Management Facility in Room W12-140 on the ground 
floor of the Department of Transportation West Building, 1200 New 
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal holidays. We have an agreement 
with the Department of Transportation to use the Docket Management 
Facility.

Privacy Act

    Anyone can search the electronic form of comments received into any 
of our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008 issue of the 
Federal Register (73 FR 3316).

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for one to the Docket Management Facility at the address under 
ADDRESSES explaining why one would be beneficial. If we determine that 
one would aid this rulemaking, we will hold one at a time and place 
announced by a later notice in the Federal Register.

Regulatory Information

    The Coast Guard is issuing this temporary interim 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 
electric current in the water poses a safety risk to commercial and 
recreational boaters who transit the area. Likewise, 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 and recreational 
boaters who transit the area. The following discussion and the 
Background and Purpose section below provides additional support of the 
Coast Guard's determination that good causes exists for not publishing 
a NPRM and for making this rule effective less than 30 days after 
publication.
    In 2002, the Army Corps of Engineers 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 Army Corps completed 
construction of a new barrier, ``Barrier IIA.'' Barrier IIA is designed 
to operate continuously at one-volt per inch, and can operate at higher 
levels. Barrier IIA is slated to undergo additional testing to 
determine optimal operating levels. Because of its design, Barrier IIA 
can generate a more powerful electric field, over a larger area within 
the Chicago Sanitary and Ship Canal, than Barrier I.
    A comprehensive, independent analysis of Barrier IIA, conducted in 
2008, 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. 
Operating Barrier IIA at four-volts per inch (the maximum capacity) 
presents a higher risk; however, there is no data yet to indicate how 
much higher. The Coast Guard and Army Corps 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).
    The Army Corps of Engineers recently notified the Coast Guard that 
it plans to activate Barrier IIA on a full-time basis starting in 
middle to late January 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.
    The Coast Guard has advised the Army Corps of Engineers that it has 
no objection to the Army Corps activating Barrier IIA at a maximum 
strength of one-volt per inch, which is the operating strength of 
Barrier I. In addition, the Coast Guard advised the Army Corps that it 
does not object to the Army Corps' plans for additional testing of 
Barrier IIA at peak field strength of up to four-volts per inch. Peak 
field strength tests are necessary to evaluate safety risks to mariners 
and their vessels when Barrier IIA is operated at a higher voltage.
    To mitigate the safety risks created by operation of the barriers, 
navigational and operational restrictions are necessary for all vessels 
transiting through the navigable waters located adjacent to and over 
the barriers. Specifically, and as discussed in more detail in the 
Discussion of the Rule section below, the Coast Guard is establishing a 
regulated navigation area, which requires vessels to adhere to 
specified operational and navigational requirements while inside the 
regulated navigation area. In addition, the Coast Guard will 
occasionally enforce a safety zone, which prohibits the movement of all 
vessels and persons through the electrical dispersal barriers during 
tests of Barrier IIA at voltages higher than one-volt per inch.

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 Army Corps of Engineers to conduct a demonstration 
project to identify an

[[Page 6354]]

environmentally sound method for preventing and reducing the dispersal 
of non-indigenous aquatic nuisance species through the Chicago Sanitary 
and Ship Canal. The Army Corps of Engineers 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 Army Corps of 
Engineers safety testing in January 2005, sparking was observed upon 
metal-to-metal contact between two independent barges in the barrier 
field.
    The electric current in the water 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 Army Corps of Engineers 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. During the past twelve months, the Coast Guard has 
hosted five Safety Work Group meetings with full participation from 
stakeholders.
    Based on the commercial significance and successful transit history 
of the Barrier I by thousands of barges since its inception in April 
2002, and Barrier IIA during Fall 2008, the Coast Guard has not chosen 
to close the waterway despite the proven electrical discharge hazard 
and additional safety concerns. Tows spanning Barrier IIA and the coal 
fired power plant barge loading area just south of the RNA remain a 
concern. Accordingly, because of the safety risks involved, it is 
imperative that the Coast Guard implements increased safety measures 
for the operation of both Barriers I and IIA.
    In addition to this temporary interim rule, the Coast Guard intends 
to publish a Notice of Proposed Rulemaking (NPRM). The NPRM will 
propose establishing a permanent regulated navigation area and safety 
zone that is identical to the regulated navigation area and safety zone 
established by this temporary interim rule. We encourage the public to 
participate in the rule proposed by our NPRM by submitting comments and 
related materials to the docket. The NPRM will contain information on 
how to submit comments and will be part of the docket number for this 
rulemaking (USCG-2008-1247). To view the NPRM, once published, as well 
as documents mentioned in this preamble as being available in the 
docket, go to http://www.regulations.gov at any time, click on ``Search 
for Dockets,'' and enter the docket number for this rulemaking (USCG-
2008-1247) in the Docket ID box, and click enter. You may also visit 
the Docket Management Facility in Room W12-140 on the ground floor of 
the DOT West Building, 1200 New Jersey Avenue, SE., Washington, DC 
20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.

Discussion of Rule

    This temporary interim rule will suspend 33 CFR 165.923 and will 
place additional restrictions on all vessels transiting through the 
navigable waters located adjacent to and over the electrical dispersal 
barriers located on the Chicago Sanitary and Ship Canal. 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 Sec.  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 Army Corps of Engineers has informed the Coast Guard that the 
Corps will continue to contract bow boat assistance for barge tows 
containing one or more red flag barges. The Army Corps of Engineers has 
also advised the Coast Guard that they have funds to contract bow boat 
assistance through September 30, 2009. 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 interim 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 interim rule 
prohibits all vessels from loitering, mooring or laying up on the right 
or left

[[Page 6355]]

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 interim 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 U.S. Army Corps 
of Engineers. Deviation from this temporary interim 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.
    A safety zone will be enforced during tests of Barrier IIA at 
voltages higher than one-volt per inch. 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 
Captain of the Port Lake Michigan via the Coast Guard Sector Lake 
Michigan Command Center at (414) 747-7182.

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 so minimal that a 
full Regulatory Evaluation is unnecessary. This determination is based 
on the following: (1) Vessel traffic may continue to transit through 
the regulated navigation area; (2) the Army Corps of Engineers 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; (3) the 
safety zone will only be enforced on an occasional basis; and (4) 
vessels may request permission from the Captain of the Port Lake 
Michigan to transit through the safety zone when the safety zone is 
enforced.
    As discussed in the ``Regulatory Information'' section above, the 
Coast Guard has established and enforced temporary safety zones, which 
prohibited all vessels from entering the waters located over and 
adjacent to the electric dispersal barriers during testing. During past 
safety zone enforcement, the Coast Guard, in coordination with the Army 
Corps of Engineers, provided advance notice of the waterway closure and 
monitored vessel traffic during closure of the waterway. During these 
prior tests, testing occurred during three, two-hour blocks of time. In 
between these two-hour blocks of time, vessel traffic was granted 
permission by the Captain of the Port to transit through the safety 
zone.
    Exact dates, times and duration of tests have not yet been 
finalized by the Army Corps for testing Barrier IIA at peak field 
strength. Nevertheless, the Coast Guard will coordinate with the Army 
Corps and waterway users, as it has done during past testing. 
Coordination efforts will include providing as much advance notice as 
possible to waterway users of planned closures and working with the 
Army Corps to structure testing dates, times and duration so as to 
minimize delays to vessels that transit the area.

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 would affect the following entities, some of which might 
be small: The owners and operators of vessels intending to transit or 
anchor in a portion of the Chicago Sanitary and Ship Canal.
    This regulated navigation area and safety zone will not have a 
significant economic impact on a substantial number of small entities 
for the following reasons: (1) Vessel traffic may continue to transit 
through the regulated navigation area; (2) the Army Corps of Engineers 
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; (3) the safety zone will only be enforced on an occasional 
basis; and (4) vessels may request permission from the Captain of the 
Port Lake Michigan to transit through the safety zone when the safety 
zone is enforced. The Coast Guard will give notice to the public, using 
all appropriate means to effect the widest publicity among the affected 
segments of the public, when the safety zone is enforced and when 
enforcement is suspended.

[[Page 6356]]

    As noted above, the Coast Guard intends to publish an NPRM and 
specifically seek public comment as to a permanent regulated navigation 
area and safety zone. The Coast Guard encourages public comment 
regarding the potential economic impact of the regulated navigation 
area and safety zone.

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 5100.1 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 a 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 6357]]


    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 from January 18, 2009 until September 
30, 2009.

0
3. A new temporary Sec.  165.T09-1247 is added as follows:


Sec.  165.T09-1247  Regulated Navigation Area and Safety Zone, Chicago 
Sanitary and Ship Canal, Romeoville, IL.

    (a) 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:
    Designated representatives means the Captain of the Port Lake 
Michigan and Commanding Officer, Marine Safety Unit Chicago.
    Red flag barge means any barge certificated to carry any hazardous 
material in bulk.
    Hazardous material means any material as defined in 46 CFR 150.115.
    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.
    (2) 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).
    (3) 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.
    (4) 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.
    (b) Safety Zone. (1) The following area is a 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) Notice of enforcement or suspension of enforcement. The Captain 
of the Port Lake Michigan will enforce the safety zone established by 
this section only upon notice. Captain of the Port Lake Michigan will 
cause notice of the 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 Sec.  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) In accordance with the general regulations in 
section 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 his 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 his 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 his behalf. The on-
scene representative of the Captain of the Port will be aboard either a 
Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or 
his on-scene representative may be contacted via VHF Channel 16.
    (4) Vessel operators desiring to enter or operate within the safety 
zone shall contact the Captain of the Port Lake Michigan or his 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 his on-scene representative.

    Dated: January 16, 2009.
D.R. Callahan,
Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District 
Acting.
[FR Doc. E9-2408 Filed 2-6-09; 8:45 am]

BILLING CODE 4910-15-P
