[Federal Register Volume 70, Number 153 (Wednesday, August 10, 2005)]
[Rules and Regulations]
[Pages 46407-46410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-15781]


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

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD09-05-102]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

[[Page 46408]]


ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is extending the previously established 
temporary final rule published in the Federal Register on January 26, 
2005 which created a regulated navigation area on the Illinois Waterway 
near Romeoville, IL. This temporary regulated navigation area will 
place navigational and operational restrictions on all vessels 
transiting through the demonstration electrical dispersal barrier 
located on the Chicago Sanitary and Ship Canal. This regulated 
navigation area is necessary to protect vessels and their crews from 
harm as a result of electrical discharges emitting from the electrical 
dispersal barrier as vessels transit over it.

DATES: This rule is effective from 12 p.m. (local) June 30, 2005 
through 12 p.m. (local) December 31, 2005. Comments and related 
materials must reach the Docket Management Facility on or before 
December 31, 2005.

ADDRESSES: You may submit comments identified by Coast Guard docket 
number [CGD09-05-102] to the Commander (m) Ninth Coast Guard District, 
1240 E.9th Street, Room 2069, Cleveland, OH 44199. The Marine Safety 
and Analysis Branch (map) is the document management facility for this 
temporary rule and maintains the public docket for this rulemaking. 
Documents that become a part of this docket are available for 
inspection between 8 a.m. and 4 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have further questions on this 
rule, contact CDR K. Phillips, Marine Safety and Analysis Branch, 
Cleveland, at (216) 902-6045.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to submit comments and related materials. Comments 
and related materials must reach the Docket Management Facility on or 
before December 31, 2005.

Submitting Comments

    If you submit a comment, please include your name and address, 
identify the docket number for this rulemaking [CGD09-05-102], indicate 
the specific section of this document to which each comment applies, 
and give the reason for each comment. You may submit your comments and 
material by mail or delivery to the docket management facility (see 
ADDRESSES); but please submit your comments and material by only one 
means. If you submit them by mail or delivery, submit them in an 
unbound format, no larger than 8 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, which may result in a 
modification to the rule.

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 (see 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

    We did not publish a notice of proposed rulemaking (NPRM) for this 
rulemaking. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing an NPRM. This potential hazard to 
vessels and people only recently became apparent, and therefore we were 
unable to publish an NPRM followed by a final rule. At this point, it 
would be impracticable and contrary to the public interest to provide 
for notice and comment, due to the need to prevent the risk of 
electrical hazard to vessels and their crew/passengers. During the 
enforcement of this regulated navigation area, comments will be 
accepted and reviewed and may result in a modification to the rule.
    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause 
exists to make this rule effective less than 30 days after publication 
in the Federal Register. Delaying this rule would be impracticable and 
contrary to the public interest of ensuring the safety of persons and 
vessels, and immediate action is necessary to prevent possible loss of 
life or property.

Background and Purpose

    On January 7, 2005, the U.S. Army Corps of Engineers, in close 
coordination with the U. S. Coast Guard, conducted preliminary safety 
tests on the Chicago Sanitary and Ship Canal at Mile Marker 296.5 in 
the vicinity of the demonstration electrical dispersal barrier located 
on the canal near Romeoville, IL. This barrier was constructed to 
prevent Asian Carp from entering Lake Michigan through the Illinois 
River system by generating a low-voltage electric field across the 
canal. The Coast Guard and Army Corps of Engineers conducted field 
tests to ensure the continued safe navigation of commercial and 
recreational traffic across the barrier; however, results indicated a 
significant arcing risk and hazardous electrical discharges as vessels 
transited the barrier posing a significant risk to navigation through 
the barrier. To mitigate this risk, navigational and operational 
restrictions will be placed on all vessels transiting through the 
vicinity.
    On January 26, 2005 this regulated navigational area was published 
in the Federal Register (70 FR 3625) as a temporary final rule. Testing 
has continued since the regulation was first proposed in January 2005. 
The testing on the electrical dispersal barrier is still being 
conducted. Preliminary results indicate that further tests and analysis 
are warranted. Therefore, the Coast Guard is enacting a second RNA and 
comment period.

Discussion of Comments and Changes

    Five comments have been received so far with regards to the first 
RNA. These have been reviewed, evaluated and responded to. A summary of 
each follows:
    We received two comments concerning the requirement to wear a Coast 
Guard approved Type I personal flotation device (PFD) while in the 
demonstration electrical dispersal barrier. It was suggested that the 
wearing of the Type V PFD would be sufficient. The COTP Chicago has 
determined that until subsequent field-testing determines the waters in 
this area do not pose significant risks to human life, the wearing of 
the Type I will be the standard. A Type I PFD is designed to provide 
support to the head so that the face of an unconscious or exhausted 
person is held above the water.
    One comment recommended that visual warnings be posted to alert 
towboat pilots well before the demonstration electrical dispersal 
barrier. The Coast Guard is presently working with the Army Corp of 
Engineers to install signs, facing both directions, that will alert 
waterway operators prior to entering the electrical barrier.
    One comment requested that, as the Corp's testing provides new 
information, that the RNA be reopened for further comment. The Coast 
Guard will not proceed with a permanent final rule until all testing 
data has been gathered, analyzed, and reviewed by all concerned 
parties. The rulemaking will remain open for comment throughout this 
process.
    One comment requested that the Coast Guard allow emergency 
exception to the requirements that vessels may not

[[Page 46409]]

moor or lay up on the right or left descending banks, and towboats may 
not make or break tows. The Coast Guard does not find this reasonable. 
Test results indicate such activities in the vicinity of the fish 
barrier cause electrical arcing and are inherently dangerous at all 
times when the fish barrier is energized; even in emergency situations.
    A request for a public meeting was received by one commenter in 
order to submit information on the generally accepted use of Type V 
PFDs as work vests for deck crews in the towing industry, the cost and 
burden associated with the requirement for Type I PFDs for the limited 
area versus the equipment required under federal equipment standards, 
and the company's safety program. The Coast Guard will take the request 
for a public meeting under consideration.

Discussion of Rule

    Until this potential hazard to navigation can be rectified, the 
Coast Guard will require vessels transiting the regulated navigation 
area to adhere to specified operational and navigational requirements. 
The regulated navigation area encompasses all waters of the Chicago 
Sanitary and Ship Canal from the north side of the Romeo Highway Bridge 
at Mile Marker 296.1 to the aerial pipeline arch located at Mile Marker 
296.7. The requirements placed on vessels include: All vessels are 
prohibited from loitering in the regulated navigation area. Vessels may 
enter this section of the waterway with the sole purpose of transiting 
to the other side, and must maintain headway throughout the transit. 
All personnel on open decks must wear a Coast Guard approved Type I 
personal flotation device while in the regulated navigation area until 
subsequent field testing determines the waters in this area do not pose 
significant risk to human life. Vessels may not moor or lay up on the 
right or left descending banks. Towboats may not make or break tows. 
Vessels may not pass (meet or overtake) in the regulated navigation 
area and must make a SECURITE call when approaching the barrier to 
announce intentions and work out passing arrangements on either side. 
Commercial tows transiting the barrier must be made up with wire rope 
to ensure electrical connectivity between all segments of the tow.
    These restrictions are necessary for safe navigation of the barrier 
and to ensure the safety of vessels and their personnel as well as the 
public's safety due to the electrical discharges noted during recent 
safety tests conducted by the Army Corps of Engineers. Deviation from 
this rule is prohibited unless specifically authorized by the 
Commander, Ninth Coast Guard District or his designated representative.

Regulatory Evaluation

    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. It has not been reviewed by the Office of 
Management and Budget under that Order. It is not ``significant'' under 
the regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    We expect the economic impact of this rule to be so minimal that a 
full Regulatory Evaluation under the regulatory policies and procedures 
of DHS is unnecessary. This determination is based on the fact that 
traffic will still be able to transit through the RNA.

Small Entities

    This rule does not require a general notice of proposed rulemaking 
and, therefore, is exempt from the requirements of the Regulatory 
Flexibility Act. Although this rule is exempt, we have reviewed it for 
potential economic impact on small entities.
    We suspect that there may be small entities affected by this rule 
but are unable to provide more definitive information. The risk, 
outlined above, is severe and requires that immediate action be taken. 
The Coast Guard will evaluate as more information becomes available.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule will have a 
significant economic impact on it, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why you think it qualifies and how and to what degree 
this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Public Law 104-121), we offered 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 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).

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.

[[Page 46410]]

Indian Tribal Governments

    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.

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 Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have 
made a preliminary determination that there are no factors in this case 
that would limit the use of a categorical exclusion under section 2.B.2 
of the Instruction. Therefore we believe this rule should be 
categorically excluded, under figure 2-1, paragraph 34 (g) from further 
environmental documentation. This temporary rule establishes a 
regulated navigation area and as such is covered by this paragraph.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES. Comments on this section will be 
considered before we make the final decision on whether the rule should 
be categorically excluded from further environmental review.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping 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; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


0
2. Add Sec.  165.T09.102 to read as follows:


Sec.  165.T09.102  Temporary Regulated Navigation Area between mile 
markers 296.1 and 296.7 of the Chicago Sanitary and Ship Canal located 
near Romeoville, IL.

    (a) Location. The following is a Regulated Navigation Area: All 
waters of the Chicago Sanitary and Ship Canal, Romeoville, IL beginning 
at the north side of Romeo Road Bridge Mile Marker 296.1, and ending at 
the south side of the Aerial Pipeline Mile Marker 296.7.
    (b) Effective period: This rule is effective from 12 p.m. (local) 
June 30, 2005 through 12 p.m. (local) December 31, 2005.
    (c) Regulations. (1) The general regulations contained in 33 CFR 
165.13 apply.
    (2) All vessels are prohibited from loitering in the regulated 
navigation area. Vessels may enter this section of the waterway with 
the sole purpose of transiting to the other side, and must maintain 
headway throughout the transit. All personnel on open decks must wear a 
Coast Guard approved Type I personal flotation device while in the 
regulated navigation area until subsequent field testing determines the 
waters in this area do not pose significant risk to human life. Vessels 
may not moor or lay up on the right or left descending banks. Towboats 
may not make or break tows. Vessels may not pass (meet or overtake) in 
the regulated navigation area and must make a SECURITE call when 
approaching the barrier to announce intentions and work out passing 
arrangements on either side. Commercial tows transiting the barrier 
must be made up with wire rope to ensure electrical connectivity 
between all segments of the tow.
    (3) All persons and vessels shall comply with this rule and any 
additional instructions of the Ninth Coast Guard District Commander, or 
his designated representative.

    Dated: June 30, 2005.
R.J. Papp, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 05-15781 Filed 8-9-05; 8:45 am]
BILLING CODE 4910-15-P