
[Federal Register: January 6, 2010 (Volume 75, Number 3)]
[Rules and Regulations]               
[Page 754-759]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06ja10-8]                         


[[Page 754]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-1080]
RIN 1625-AA11, 1625-AA00

 
Safety Zone and Regulated Navigation Area, 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 both a safety zone and a 
Regulated Navigation Area (RNA) on the Chicago Sanitary and Ship Canal 
(CSSC) near Romeoville, IL. This temporary interim rule places 
navigational, environmental 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: Effective Date: In this rule, Sec.  165.T09-1004 is removed, 
effective January 6, 2010. Section 165.923 is suspended, and a new 
temporary section, Sec.  165.T09-1080, is added in the CFR effective 
January 6, 2010 until 5 p.m. on December 1, 2010. This rule is 
effective with actual notice for purposes of enforcement beginning at 5 
p.m. on December 18, 2009.
    Comment Date: Comments and related material must reach the Docket 
Management Facility on or before February 5, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-1080 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-2009-1080), 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 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-2009-1080'' 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-2009-1080 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 on or before January 29, 2009 using one of the four 
methods specified under ADDRESSES. Please explain why you believe a 
public meeting 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.'' For the reasons discussed below, 
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 based upon data which indicates that Asian carp are much 
closer to the Great Lakes waterway system than originally thought. The 
possibility exists that vessels will transport Asian carp eggs, gametes 
or juvenile fish safely through the electrical dispersal barrier in 
water attained south of the fish barrier that is then transported and 
discharged on the other side of the barrier. The Asian carp are the 
subject of an ongoing multi-agency study aimed at preventing their 
introduction into the great lakes. The proposed temporary safety zone 
and RNA will allow that multi-agency effort to progress towards its 
goal of protecting people, vessels, and the environment from the 
hazards associated with the

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possible introduction of invasive species such as Asian carp into the 
Great Lakes.
    As such, the USCG must take immediate steps in order to prevent 
possible introduction of Asian carp before the ongoing effort can be 
completed. Therefore, it would be against the public interest to delay 
the issuing of this rule. Additionally, for the same reasons, the Coast 
Guard finds that good cause exists for making this rule effective less 
than 30 days after publication in the Federal Register under 5 U.S.C. 
553(d)(3).

RNA Good Cause Discussion

    In 2002, the USACE energized a demonstration electrical dispersal 
barrier located in the CSSC. 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 CSSC, 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 energize the 
barrier to two-volts per inch without prior testing.
    A comprehensive, independent analysis of Barrier IIA, conducted in 
2008 by the USACE at the one-volt per inch level, found a serious risk 
of injury or death to persons immersed in the water located adjacent to 
and over the barrier. Additionally, sparking between barges transiting 
the barrier (a risk to flammable cargoes) occurred at the one-volt per 
inch level. The Coast Guard and USACE developed regulations and safety 
guidelines, with stakeholder input, which addressed the risks and 
hazards associated with operating the barriers at the one-volt per inch 
level. These regulations were published in 33 CFR Sec.  165.923, 70 FR 
76692 (Dec 28, 2005) and in a series of temporary final rules published 
in the Federal Register: 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).
    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 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 an RNA and a 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 2, 2009 (74 FR 45318), September 29, 
2009 (74 FR 49815), and November 13, 2009 (74 FR 58545).
    Testing and analysis of the risks to persons and vessels are 
ongoing. Until those risks are well understood, immediate action is 
needed to prevent injury to people and vessels from effects of Barrier 
IIA. As a result, it is contrary to the public interest to provide a 
full notice and comment period prior to implementation of, or to delay 
the effective date of, the RNA included in this rule.

Safety Zone Good Cause Discussion

    In November 2009, the USACE made an announcement that it had 
discovered environmental deoxyribonucleic acid (e-dna) from Asian carp 
north of the fish barrier. This discovery indicates that Asian carp are 
living in the waterways north of the fish barrier in the Cal-Sag 
Channel but south of the O'Brien Locks. Under 50 CFR part 16, Asian 
carp are listed as an injurious species of fish and as such are illegal 
for interstate transportation. A permit is required to transport all 
viable eggs, gametes, as well as live Silver or Asian carp. 
Historically, vessels, including barges, have taken on water south of 
the barrier and transported it across the fish barriers, either 
knowingly or unknowingly, as bilge, ballast, or other non-potable 
water. This practice is considered a possible bypass vector for 
transporting Asian carp eggs or juvenile fish from south of the barrier 
to north of the barrier. Immediate action is needed to halt this 
practice, thereby closing down this possible bypass vector. For this 
reason, providing a full notice and comment period and delaying the 
effective date for the safety zone including in this temporary interim 
rule would be contrary to the public interest.

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 CSSC. 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 is up to four times that of the Barrier I. Barrier IIA 
was successfully operated for the first time for approximately

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seven weeks in September and October 2009, 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 Barrier I. During subsequent USACE safety testing, 
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, 
including industry representatives such as the American Waterways 
Operators and Illinois River Carriers Association, the 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 implementing operational restrictions, 
via an RNA, on vessels 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 reduce operational restrictions as soon as possible; however, 
it is imperative that the RNA be immediately enacted to avoid loss of 
life.
    On December 2, 2009, rotenone, a fish toxicant, was applied to 
approximately six miles of the CSSC while barrier maintenance was 
conducted to ensure no fish were able to transit the barrier. One 
Silver Carp was found in the area immediately south of the barrier. 
Similarly e-dna was detected north of the barrier, in an area of the 
Cal-Sag Channel immediately below the O'Brien Locks and at the 
confluence of the Cal-Sag Channel and the CSSC. This e-dna detects the 
presence of Carp, but in the subsequent fishing operations, we were not 
able to determine a number or mass of the fish present.
    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. In 
addition, when USACE activates barrier IIB, additional testing will be 
necessary to ensure the safety of vessels. If this occurs, it is 
possible that fewer vessels will be given permission to enter the RNA 
and 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 temporary interim rule removes 33 CFR 165.T09-1004, the last 
temporary rule published to address risks associated with Barrier IIA 
and the application of rotenone to the CSSC. This rule also suspends 33 
CFR 165.923 until 5 p.m. on December 1, 2010. This rule places an RNA 
on all waters located adjacent to, and over, the electrical dispersal 
barriers on the CSSC 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). It also places a safety 
zone over a smaller portion of these same waters. The RNA and safety 
zone will be enforced at all times until the USACE suspends operation 
of the electrified fish barrier and the Asian carp are no longer deemed 
an environmental threat to the Great Lakes. This temporary rule is to 
remain in effect until December 1, 2010 in order to allow sufficient 
time for the Coast Guard to publish a final rule based on comments 
received from the public in response to this temporary interim rule. At 
the same time, the Coast Guard expects the USACE to energize barrier 
IIB, which is likely to require additional safety testing. This RNA and 
safety zone are also required during that testing period to prevent the 
possible loss of life and damage to property.
    The RNA 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 
all vessels include: (1) Vessels must be greater than twenty feet in 
length; (2) Vessel must not be a personal watercraft of any kind (i.e., 
jet skis, wave runners, kayak, etc.); (3) All up-bound and down-bound 
commercial tows that consist of barges carrying flammable liquid cargos 
(grade A through C, flashpoint below 140 degrees Fahrenheit, or heated 
to within 15 degrees Fahrenheit of flash point) must engage the 
services of a bow boat at all times until the entire tow is clear of 
the RNA; (4) Vessels engaged in commercial service, as defined in 46 
U.S.C. 2101(5), may not pass (meet or overtake) in the RNA and must 
make a SECURITE call when approaching the RNA to announce intentions 
and work out passing arrangements on either side; (5) Commercial tows 
transiting the RNA must only be made up with wire rope to ensure 
electrical connectivity between all segments of the tow; (6) All 
vessels are prohibited from loitering in the RNA; (7) Vessels may enter 
the RNA for the sole purpose of transiting to the other side and must 
maintain headway throughout the transit; (8) 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 RNA; (9) All personnel on vessels transiting 
the RNA should remain inside the cabin, or as inboard as practicable. 
If personnel must be on open decks, they must wear a Coast Guard 
approved personal flotation device; (10) Vessels may not moor or lay up 
on the right or left descending banks of the RNA; and, (11) Towboats 
may not make or break tows if any portion of the towboat or tow is 
located in the RNA.
    This temporary final rule places additional restrictions on all 
vessels transiting a safety zone that encompasses a smaller portion of 
the CSSC. The safety zone consists of all the waters of the CSSC 
located between 270 feet south of the Romeo Road Bridge (mile marker 
296.1) to the south side of the aerial pipeline (mile marker 296.7). 
Vessels are prohibited from transiting the safety zone with non-potable 
water on board in any space except for water on board that will not be 
discharged on the other side of the safety zone. Vessels must notify 
and obtain permission from the Captain of the Port Sector Lake Michigan 
prior to transiting the safety zone if they intend to discharge any 
non-potable water attained on one-side of the safety zone on the other 
side of the zone. This includes water in void spaces being 
unintentionally introduced through cracks or other damage to the hull. 
The Captain of the Port Sector Lake Michigan maintains a telephone

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line that is manned 24 hours a day, seven days a week. The public can 
obtain information concerning information about the RNA and safety zone 
by contacting the Captain of the Port Lake Michigan via the Coast Guard 
Sector Lake Michigan Command Center at 414-747-7182.
    These restrictions are necessary for safe navigation of the RNA 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. They are also necessary to protect from 
the harms presented by a potential invasion of Asian carp in Lake 
Michigan. 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 Sector Lake Michigan and 
Commanding Officer, Marine Safety Unit Chicago, as his designated 
representatives for the purposes of the RNA.
    The Captain of the Port Sector 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 
Sector Lake Michigan will make every effort to permit vessels to pass 
for which there is a decrease of known 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 Sector Lake Michigan or 
her designated representative while in the zone.
    If, for any reason, the safety zone or RNA are at any time 
suspended, the Captain of the Port Lake Michigan will cause notice of 
the enforcement of the safety zone and/or RNA to be made by all 
appropriate means to effect the widest publicity among the affected 
segments of the public.

Regulatory Analyses

    We developed this temporary interim 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.
    Because this regulated navigation area and 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.
    This rule will affect commercial traffic transiting the electrical 
dispersal fish barrier system and surrounding waters. The ACOE 
maintains data about the commercial vessels using the Lockport Lock and 
Dam, which provides access to the proposed RNA. According to ACOE data, 
the commercial traffic through the Lockport Lock consisted of 147 
towing vessels and 13,411 barges during 2007. Of those, 96 towing 
vessels and 2,246 barges were handling red flag cargo (i.e., those 
carrying hazardous, flammable, or combustible material in bulk).
    Recreational vessels will also be affected under this rule. 
According to ACOE data, recreational vessels made up 66 percent of the 
usage of the Lockport Lock and Dam in 2007. Operation and maintenance 
of the ACOE fish barrier will continue to affect recreational vessels 
as they have in the past. The majority of these vessels will still be 
able to transit the RNA under this rule. The potential cost associated 
with this rule will include bow boat assistance for red flag vessels 
and the potential cost associated with possible delays or inability to 
transit the RNA for those vessels transporting non-potable water 
attained on one side of the barrier for discharge on the other.
    Operators have been using bow boat assistance, under prior 
temporary rules, to mitigate the risk posed by the electrical dispersal 
fish barrier system operated by ACOE. Based on information from the 
Ninth Coast Guard District, several tow boat operators are already 
refraining from permitting the discharge of non-potable water attained 
on one side of the barrier to the other.
    We expect some provisions in this rule will not result in 
additional costs. These include loitering, mooring and PFD 
requirements. Similar to prior temporary rules, vessels are prohibited 
from mooring or loitering in the RNA and all personnel in the RNA on 
open decks are required to wear a Coast Guard approved Type I personal 
flotation device. Most commercial and recreational operators will have 
required flotation devices on board as a result of other requirements 
and common safe boating practices. Based on the past temporary rules, 
we observed no information and received no data to confirm there were 
additional costs as a result of these provisions.
    In addition, the 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 CSSC 
will be permitted to enter the regulated navigation area and safety 
zone under certain conditions. 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.
    We expect the benefits of this rule will mitigate marine safety 
risks as a result of the operation and maintenance of the fish barriers 
by the ACOE. This rule will allow commerce to continue through the 
waters adjacent to and over these barriers. This rule will also 
mitigate the possibility of an Asian Carp introduction into Lake 
Michigan, and the Great Lakes system, as a result of commerce through 
the CSSC.
    At this time, based on available information from past temporary 
rules, we anticipate that this rule will not be economically 
significant under Executive Order 12866 (i.e., have an annual effect on 
the economy of $100 million or more). The Coast Guard urges interested 
parties to submit comments that specifically address the economic 
impacts of this temporary interim rule. Comments can be made online by 
following the procedures outlined above in the ADDRESSES section.

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

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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 temporary 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), as well as paragraph 
(27) 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. This temporary rule will assist the 
aforementioned multi-agency effort to research and manage the possible 
impact of the Asian carp on the Great Lakes. 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.T09-1004  [Removed]

0
2. Remove Sec.  165.T09-1004.

[[Page 759]]

Sec.  165.923  [Suspended]

0
3. Suspend Sec.  165.923 from January 6, 2010 until 5 p.m. on December 
1, 2010.


0
4. Add new temporary Sec.  165.T09-1080 as follows:


Sec.  165.T09-1080  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 CSSC located between mile marker 296.1 (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) Regulations.
    (i) All vessels are prohibited from transiting the safety zone with 
any non-potable water on board if they intend to release that water in 
any form within, or on the other side of the safety zone. Non-potable 
water includes but is not limited to any water taken on board to 
control or maintain trim, draft, stability or stresses of the vessel, 
or taken on board due to free communication between the hull of the 
vessel and exterior water. Potable water is water treated and stored 
aboard the vessel that is suitable for human consumption.
    (ii) Vessels with non-potable water onboard are permitted to 
transit the safety zone if they have taken steps to prevent the release 
of that water in any form, in or on the other side of, the safety zone, 
or alternatively if they have plans to dispose of the water in a 
biologically sound manner.
    (iii) Vessels with non-potable water aboard that intend to 
discharge on the other side of the zone must contact the COTP, her 
designated representative or her on-scene representative and obtain 
permission to transit and discharge prior to transit. Examples of 
discharges that may be approved by the COTP include plans to dispose of 
the water in a biologically sound manner or demonstrate through testing 
that the non-potable water does not contain potential live Silver or 
Asian carp, or viable eggs or, gametes from these carp.
    (iv) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into, transiting, or anchoring within this safety zone 
by vessels with non-potable water on board is prohibited unless 
authorized by the Captain of the Port Lake Michigan, her designated 
representative, or her on-scene representative.
    (v) 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 also be contacted via VHF-FM radio 
Channel 16 or through the Coast Guard Sector Lake Michigan Command 
Center at 414-747-7182.
    (b) Regulated Navigation Area. (1) The following is a regulated 
navigation area (RNA): 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).
    (2) Regulations.
    (i) The general regulations contained in 33 CFR 165.13 apply.
    (ii) Vessels that comply with the following restrictions are 
permitted to transit the RNA:
    (A) All up-bound and down-bound barge tows that consist of barges 
carrying flammable liquid cargos (Grade A through C, flashpoint below 
140 degrees Fahrenheit, or heated to within 15 degrees Fahrenheit of 
flash point) must engage the services of a bow boat at all times until 
the entire tow is clear of the RNA.
    (B) Vessels engaged in commercial service, as defined in 46 U.S.C. 
2101(5), may not pass (meet or overtake) in the RNA and must make a 
SECURITE call when approaching the RNA to announce intentions and work 
out passing arrangements.
    (C) Commercial tows transiting the RNA must be made up with only 
wire rope to ensure electrical connectivity between all segments of the 
tow.
    (D) All vessels are prohibited from loitering in the RNA.
    (E) Vessels may enter the RNA 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 RNA.
    (F) Except for law enforcement and emergency response personnel, 
all personnel on vessels transiting the RNA should remain inside the 
cabin, or as inboard as practicable. If personnel must be on open 
decks, they must wear a Coast Guard approved personal flotation device.
    (G) Vessels may not moor or lay up on the right or left descending 
banks of the RNA.
    (H) Towboats may not make or break tows if any portion of the 
towboat or tow is located in the RNA.
    (I) Persons on board any vessel transiting this RNA in accordance 
with this rule or otherwise are advised they do so at their own risk.
    (c) 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 RNA. 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 representative means the Captain of the Port Lake 
Michigan and Commanding Officer, Marine Safety Unit Chicago.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable or being used, as a means of 
transportation on water. This definition includes, but is not limited 
to, barges.
    (d) Enforcement Period. The regulated navigation area and safety 
zone will be enforced from 5 p.m. on December 18, 2009, until 5 p.m. on 
December 1, 2010. This regulated navigation area and safety zone are 
enforceable with actual notice by Coast Guard personnel beginning 
December 18, 2009, until January 6, 2010.
    (e) 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 RNA in accordance with this rule or 
otherwise does so at their own risk.
    (f) 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: December 18, 2009.
Peter V. Neffenger
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. E9-31350 Filed 1-5-10; 8:45 am]

BILLING CODE 9110-04-P
