[Federal Register Volume 70, Number 248 (Wednesday, December 28, 2005)]
[Rules and Regulations]
[Pages 76692-76694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24538]



[[Page 76692]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD09-05-131]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard has established a permanent regulated 
navigation area on the Chicago Sanitary and Ship Canal on the Illinois 
Waterway near Romeoville, IL. This permanent regulated navigation area 
places 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 on January 1, 2006 at 12:01 a.m. local 
time.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket [CGD09-05-131] and are available for inspection or 
copying at Ninth Coast Guard District (dpw-1), 1240 E. 9th Street, Room 
2069, Cleveland, OH 44199. The Ninth Coast Guard District Waterways 
Planning and Development Section (dpw-1) maintains the public docket 
for this rulemaking. Comments and material received from the public, as 
well as documents indicated in this preamble as being available in the 
docket, will become part of this docket and will be available for 
inspection or copying 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, Waterways Planning and Development 
Section, Ninth Coast Guard District, Cleveland, OH at (216) 902-6045.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On November 14, 2005, we published a notice of proposed rulemaking 
(NPRM) in the Federal Register (70 FR 69128). We received 2 letters 
containing a total of three comments on the proposed rule. No public 
meeting was requested, and none was held.
    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. The Fish Barrier can cause 
significant arcing and hazardous electrical discharges, putting vessels 
and mariners that transit through it at risk. Any delay in establishing 
this regulation would increase the danger.

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 electrical dispersal barrier located at Mile Marker 296.5 
of the Chicago Sanitary and Ship 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 serious risk to 
navigation through the barrier. To mitigate these risks, the Coast 
Guard established this final rule, which places navigational and 
operational restrictions on all vessels transiting through the 
vicinity.
    On January 26, 2005 a regulated navigation area (RNA) was published 
in the Federal Register (70 FR 3625) as a temporary final rule. The 
temporary final rule was extended on August 10, 2005 (70 FR 46407). 
Testing has continued since the temporary regulation was first proposed 
in January 2005, but has not yet been completed. Preliminary results 
indicate that further tests and analysis are warranted and that this 
process may continue for an undetermined period of time.

Discussion of Rule

    Until the potential electrical hazards 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 all vessels include: All vessels are 
prohibited from loitering in the regulated navigation area; vessels may 
enter the regulated navigation area for 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; 
vessels may not moor or lay up on the right or left descending banks in 
the regulated navigation area; towboats may not make or break tows in 
the regulated navigation area; 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; and commercial tows transiting the 
regulated navigation area 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 
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 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. The Commander, Ninth Coast Guard 
District will designate Captain of the Port, Lake Michigan as his 
designated representative for the purposes of this rule.

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. The office of Management and Budget has not 
reviewed it 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.

Discussion of Comments

    The Coast Guard received three comments regarding this rule. One 
comment requested that the required Personal Flotation Device (PFD) be 
changed from a Type I to Type V with the understanding that commercial 
crews would only be on deck in the

[[Page 76693]]

event of unusual circumstances or an emergency. The Coast Guard 
disagrees with this recommendation. The Coast Guard has determined that 
the electrical voltage poses significant risks to human life with a 
high risk of causing immobility to a person in the water. The 
suggestion that a crew member would only be on deck in an emergency 
further increases the risk and the need for the Type I PFD. A Type I 
PFD is designed to provide support to the head so that the face of an 
unconscious, immobilized, or exhausted person is held above the water.
    The second comment requested that the regulated navigation area 
remain temporary. In the alternative, the submitter requested that 
additional comments be permitted upon the release of further safety 
data, the deactivation of the temporary barrier, or the activation of 
the new barrier. The Coast Guard disagrees with this recommendation. 
While the barrier is in operation there are serious safety concerns, 
and the Coast Guard has not been given a date that final safety testing 
will be complete. Since the danger to mariners and vessels remains 
indefinitely, the Coast Guard has elected to make this rule permanent. 
If there are changes to the barrier or additional safety data becomes 
available, the Coast Guard may re-evaluate this rule. If additional 
data makes it necessary to amend this rule, the Coast Guard will follow 
notice and comment rulemaking procedures.
    The third comment recommended that visual warnings be posted to 
alert towboat pilots well before the electrical dispersal barrier. The 
Coast Guard agrees with this comment. However, the Coast Guard does not 
agree that this rule needs to be modified. Warning signs are being 
designed and constructed by the Army Corps of Engineers. The warning 
signs will alert all waterway users and will be placed on right and 
left descending banks at both ends of the regulated navigation area 
(mile markers 296.7 and 296.1). The two signs on the right descending 
bank will be alert notices and will read ``DANGER''. The signs on the 
left descending bank will read ``DANGER; ELECTRIC CHARGE IN WATER; DO 
NOT STOP, ANCHOR OR FISH; NO MOORING OR PASSING; TYPE 1 LIFEJACKET MUST 
BE WORN''. These signs will be approximately 8 feet tall and 20 feet 
wide. The type and size of the lettering meets Army Corps of Engineers 
standards and will be similar to the safety signs found on all locks 
and dams. Installation of these signs is an Army Corps of Engineers 
project, therefore any party concerned with signage should contact that 
agency. The Coast Guard will continue to work closely with all waterway 
users to assess the safety issues and the management of the regulated 
navigation 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.
    We suspect that there may be small entities affected by this rule 
but are unable to provide more definitive information as to the number 
of small entities that may be affected. We did not receive any comments 
on this issue. The risk, outlined above, is severe and requires that 
immediate action be taken. The Coast Guard will evaluate whether a 
substantial number of small entities are affected as more information 
becomes available.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 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.

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

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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 M16475.1D, 
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 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.  165.923 to read as follows:


Sec.  165.923  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 between 
the north side of Romeo Road Bridge Mile Marker 296.1, and the south 
side of the Aerial Pipeline Mile Marker 296.7.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.13 apply.
    (2) All vessels are prohibited from loitering in the regulated 
navigation area.
    (3) Vessels may enter the regulated navigation area for the sole 
purpose of transiting to the other side, and must maintain headway 
throughout the transit.
    (4) All personnel on open decks must wear a Coast Guard approved 
Type I personal flotation device while in the regulated navigation 
area.
    (5) Vessels may not moor or lay up on the right or left descending 
banks of the regulated navigation area.
    (6) Towboats may not make or break tows in the regulated navigation 
area.
    (7) 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.
    (8) Commercial tows transiting the regulated navigation area must 
be made up with wire rope to ensure electrical connectivity between all 
segments of the tow.
    (c) Compliance. All persons and vessels shall comply with this rule 
and any additional instructions of the Ninth Coast Guard District 
Commander, or his designated representative. The Captain of the Port, 
Lake Michigan is a designated representative of the District Commander 
for the purposes of this rule.

    Dated: December 19, 2005.
R.J. Papp, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 05-24538 Filed 12-27-05; 8:45 am]
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