[Federal Register Volume 73, Number 208 (Monday, October 27, 2008)]
[Rules and Regulations]
[Pages 63633-63637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25518]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-1052]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is revising the dates and reinstating a 
temporary regulated navigation area and safety zone on the Chicago 
Sanitary and Ship Canal near Romeoville, IL. This regulated navigation 
area and safety zone places navigational and operational restrictions 
on all vessels transiting through the electrical dispersal barrier IIA.

DATES: This rule is effective from October 16, 2008, to November 1, 
2008.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2008-1052 and are available online 
by going to http://www.regulations.gov, selecting the Advanced Docket 
Search option on the right side of the screen, inserting USCG-2008-1052 
in the Docket ID box, pressing Enter, and then clicking on the item in 
the Docket ID column. They are also available for inspection or copying 
at two locations: the Docket Management Facility (M-30), U.S. 
Department of Transportation, West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday,

[[Page 63634]]

except Federal holidays, and the U.S. Coast Guard Sector Lake Michigan, 
2420 South Lincoln Memorial Drive, Milwaukee, Wisconsin 53207 between 
8:30 a.m. and 3 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule 
call CDR Tim Cummins, Deputy Prevention Division, Ninth Coast Guard 
District, telephone 216-902-6049. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: 

Regulatory Information

    On June 12, 2008, we published a Notice of Proposed Rulemaking 
(NPRM) entitled Regulated Navigation Area and Safety Zone, Chicago 
Sanitary and Ship Canal, Romeoville, IL, in the Federal Register (73 FR 
3337)and on July 2, 2008 we published a temporary final rule (73 FR 
37810). On August 7, 2008, we published a temporary final rule that 
revised and reinstated the rule that had previously been published on 
July 2, 2008 (73 FR 45875). The regulated navigation area established 
by that rule will end on October 15. This rule reinstates the Temporary 
Final Rule published on August 7, 2008. This Temporary Final Rule is 
necessary because work on the Demonstration Barrier is not completed. 
This rule will be in effect from October 16, 2008 until November 1, 
2008.
    Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause 
exists for not publishing an NPRM. This regulated navigation area and 
safety zone was implemented for an emergency situation and required 
continued activation. 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. Delaying this rule would be 
contrary to the public interest of ensuring the safety of spectators 
and vessels during this event and immediate action is necessary to 
prevent possible loss of life or property.

Background and Purpose

    The electrodes on the demonstration electrical dispersal barrier 1 
located between Mile Markers 296.1 and 296.7 of the Chicago Sanitary 
and Ship Canal are beginning to fail. 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 Army Corps of Engineers has shutdown barrier 1 and needs 
additional time to finish the process of replacing the barrier 
electrodes which run across the bottom of the canal. Divers will be in 
the water and a barge-mounted crane will be operating during 
maintenance operations to barrier 1. Electrical dispersal barrier IIA 
located on the Chicago Sanitary and Ship Canal 270 feet south of Mile 
Marker 296.1 to Mile Marker 296.7 will be in operation while repairs 
are being made to demonstration electrical dispersal barrier 1. Barrier 
IIA operated continuously for a two week period before taking barrier 1 
off line for electrode replacement. Electrical dispersal barrier IIA 
generates a more powerful electric field than barrier 1 over a larger 
area within the Chicago Sanitary and Ship Canal.
    The Coast Guard and U.S. Army Corps of Engineers conducted field 
tests to ensure the continued safe navigation of commercial and 
recreational traffic across the barrier; however, results indicated an 
arcing risk and hazardous electrical discharges as vessels transited 
the barrier posing a serious risk to navigation through the barrier. To 
mitigate these risks, navigational and operational restrictions will be 
placed on all vessels transiting through the vicinity. 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. This regulation 
will be an additional 16 days in length to provide enough time for 
maintenance to be completed. This type of maintenance has never been 
performed on Barrier I and therefore, an extended amount of time was 
needed.

Discussion of Rule

    This rule will suspend 33 CFR 165.923 and place additional 
restrictions on all vessels transiting through electrical dispersal 
barrier IIA located on the Chicago Sanitary and Ship Canal from October 
15, 2008, until November 1, 2008. The regulated navigation area 
encompasses all waters of the Chicago Sanitary and Ship Canal 270 feet 
south of the Romeo Road Bridge Mile Marker 296.1 to the south side of 
the Aerial Pipeline Mile Marker 296.7. The requirements placed on all 
vessels include: All up-bound and down-bound barge tows that contain 
one or more Red Flag barges transiting through the restricted 
navigation area must be assisted by a bow boat at least one mile above 
the restricted navigation area to at least one mile below the 
restricted navigation area. Red Flag barges are barges containing 
hazardous materials as identified by Commodity Codes:

01 (Empty with previous hazardous material)
20 (Petroleum and Petroleum Products)
21 (Crude Petroleum)
22 (Gasoline, Jet Fuel and Kerosene)
23 (Distillate, Residual and other Fuel Oils; Lubricating Oils and 
Greases)
24 (Petroleum Pitches, Coke Asphalt, Naphtha and Solvents)
30 (Chemicals and Related Products)
31 (Fertilizer-Nitrogenous, Potassic, Phosphatic and Others)
32 (Organic Industrial Chemicals {Crude Products{time}  from Coal, 
Tar, Petroleum and Natural Gas, Dyes, Organic Pigment Dying and 
Tanning Materials, Alcohols, Benzene; Inorganic Industrial Chemicals 
{Sodium Hydroxide{time} ; Radioactive and Associated Materials; 
Drugs)

    The U.S. Army Corps of Engineers will contract bow boat assistance 
for barge tows containing one or more Red Flag barges. Information on 
how to contact the contractor for bow boat assistance will be provided 
to the public in a Broadcast Notice to Mariners. Towing assistance will 
be provided from at least one mile above the restricted navigation area 
to at least one mile below the restricted navigation area.
    This rule prohibits all vessels 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. The rule also requires all personnel on 
open decks to wear a Coast Guard approved Type I personal flotation 
device while in the regulated navigation area. In addition, 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. All vessels must make a SECURITE call 
when approaching the barrier to announce intentions and work out 
passing arrangements on either side. Finally, 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 safety tests conducted by the U.S. 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

[[Page 63635]]

his designated representative for the purposes of this rule.
    A temporary safety zone will be in place while repairs are being 
made to barrier 1. This temporary safety zone is necessary to ensure 
the safety of workers and vessels during maintenance operations to 
barrier 1 on the Chicago and Sanitary Ship Canal.
    The maintenance on barrier 1 will occur between 7 a.m., October 16, 
2008, and 5 p.m., November 1, 2008. The safety zone will be enforced 
from 7 a.m. to 12 p.m. and 1 p.m. to 5 p.m. on October 16, 2008, 
through November 1, 2008. The safety zone will encompass all waters of 
the Chicago Sanitary Ship Canal from mile marker 296.1 to mile marker 
296.7.
    The Captain of the Port will cause notice of enforcement of the 
safety zone established by this section to be made by all appropriate 
means to 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 terminated.

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.
    This determination is based on the fact that traffic will still be 
able to transit through the regulated navigation area and the minimal 
time that vessels will be restricted from the safety zone. The safety 
zone is an area where the Coast Guard expects insignificant adverse 
impact to mariners from the zones' activation.

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 
would 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 Ship Canal from October 16, 
2008, to November 1, 2008.
    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. Vessel traffic will be able to transit 
through the regulated navigation area. The U.S. Army Corps of Engineers 
will contract bow boat assistance for barge tows containing one or more 
Red Flag barges. Vessel traffic will only be limited for one five-hour 
period and one four-hour period each day the safety zone is in effect. 
In the event this temporary safety zone affects shipping, commercial 
vessels may request permission from the Captain of the Port Lake 
Michigan to transit through the safety zone. The Coast Guard will give 
notice to the public via a Broadcast Notice to Mariners that the 
regulation is in effect.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule would have 
a significant economic impact on it, please submit a comment (see 
ADDRESSES) explaining 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 (Pub. L. 104-121), we want to assist small 
entities in understanding the rule so that they could better evaluate 
its effects on them and participate in the rulemaking. If the rule 
would affect your small business, organization, or governmental 
jurisdiction and you have questions concerning its provisions or 
options for compliance, please contact CDR Tim Cummins, Deputy 
Prevention Division, Ninth Coast Guard District, 1240 East Ninth 
Street, Cleveland, OH 44199; 216-902-6049. 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 would call 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 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 would not result in such 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 concern 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

[[Page 63636]]

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 procedure; and related management 
system 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 
under the Instruction 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, this rule is categorically excluded, under 
figure 2-1, paragraph (34)(g), of the Instruction, from further 
environmental documentation.
    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, and Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


Sec.  165.923  [Suspended]

0
2. Section 165.923 is suspended from October 16, 2008, until November 
1, 2008.

0
3. A new temporary Sec.  165.T09-4004 is added as follows:


Sec.  165.T09-4004  Temporary Regulated Navigation Area, 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 270 feet south of the Romeo Road Bridge Mile Marker 
296.1 to the south side of the Aerial Pipeline Mile Marker 296.7.
    (b) Effective period. This section is effective from October 16, 
2008, until November 1, 2008.
    (c) Definitions. The following definitions apply to this section: 
Designated representative means the Captain of the Port Lake Michigan.
    Red Flag barges means barges containing hazardous materials as 
identified by the following Commodity Codes:
    (1) 01 (Empty with previous hazardous material);
    (2) 20 (Petroleum and Petroleum Products);
    (3) 21 (Crude Petroleum);
    (4) 22 (Gasoline, Jet Fuel and Kerosene);
    (5) 23 (Distillate, Residual and other Fuel Oils; Lubricating Oils 
and Greases);
    (6) 24 (Petroleum Pitches, Coke Asphalt, Naphtha and Solvents);
    (7) 30 (Chemicals and Related Products);
    (8) 31 (Fertilizer-Nitrogenous, Potassic, Phosphatic and Others); 
and
    (9) 32 (Organic Industrial Chemicals {Crude Products{time}  from 
Coal, Tar, Petroleum and Natural Gas, Dyes, Organic Pigment Dying and 
Tanning Materials, Alcohols, Benzene; Inorganic Industrial Chemicals 
{Sodium Hydroxide{time} ; Radioactive and Associated Materials; Drugs)
    (d) Regulations. (1) The general regulations contained in 33 CFR 
165.13 apply.
    (2) All up-bound and down-bound barge tows that contain one or more 
Red Flag barges transiting through the restricted navigation area must 
be assisted by a bow boat until the entire tow is clear of the expanded 
restricted navigation area boundaries.
    (i) Information on how to contact the contractor for bow boat 
assistance will be provided to the public in a Broadcast Notice to 
Mariners.
    (ii) Towing assistance will be provided from at least one mile 
above the restricted navigation area to at least one mile below the 
restricted navigation area.
    (3) All vessels are prohibited from loitering in the regulated 
navigation area.
    (4) Vessels may enter the regulated navigation area for the sole 
purpose of transiting to the other side, and must maintain headway 
throughout the transit.
    (5) All personnel on open decks must wear a Coast Guard approved 
Type I personal flotation device while in the regulated navigation 
area.
    (6) Vessels may not moor or lay up on the right or left descending 
banks of the regulated navigation area.
    (7) Towboats may not make or break tows in the regulated navigation 
area.
    (8) 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.
    (9) Commercial tows transiting the regulated navigation area must 
be made up with wire rope to ensure electrical connectivity between all 
segments of the tow.
    (e) Compliance. All persons and vessels must comply with this 
section and any additional instructions of the Ninth Coast Guard 
District Commander, or his designated representative.

[[Page 63637]]


0
4. A new temporary section 165.T09-4005 is added as follows:


Sec.  165.T09-4005  Safety Zone; Chicago Sanitary and Ship Canal, 
Romeoville, IL.

    (a) Safety Zone. The following area is a temporary safety zone: All 
waters of the Chicago Sanitary and Ship Canal from mile marker 296.1 to 
296.7.
    (b) Effective period. This regulation is effective from 7 a.m., 
October 16, 2008, to 5 p.m., November 1, 2008. The safety zone will be 
enforced from 7 a.m. to 12 p.m. and 1 p.m. to 5 p.m. on October 16, 
2008, through November 1, 2008.
    (c) Regulations. (1) 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.
    (2) 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.
    (3) 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: October 10, 2008.
Peter V. Neffenger,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. E8-25518 Filed 10-24-08; 8:45 am]
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