[Federal Register Volume 74, Number 99 (Tuesday, May 26, 2009)]
[Proposed Rules]
[Pages 24722-24728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12179]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

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


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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

DATES: Comments and related material must either be submitted to our 
online docket via http://www.regulations.gov on or before July 27, 2009 
or reach the Docket Management Facility by that date.

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

FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed 
rule call LT Ann Henkelman, Waterways Management Branch, Ninth Coast 
Guard District, telephone 216-902-6288. If you have questions on 
viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

[[Page 24723]]


SUPPLEMENTARY INFORMATION: 

Public Participation and Request for Comments

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

Submitting Comments

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

Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble 
as being available in the docket, go to http://www.regulations.gov, 
select the Advanced Docket Search option on the right side of the 
screen, insert USCG-2008-1247 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit 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 all comments received into 
any of our dockets by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review a Privacy Act notice 
regarding our public dockets in the January 17, 2008, issue of the 
Federal Register (73 FR 3316).

Public Meeting

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

Background and Purpose

    The Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990, as amended by the National Invasive Species Act of 1996, 
authorized the Army Corps of Engineers (Army Corps) 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 Chicago Sanitary and Ship Canal. The Army 
Corps selected an electric barrier because it is a non-toxic deterrent 
with a proven history and also does not overtly interfere with 
navigation in the canal.
    In April 2002, the Army Corps energized a demonstration electrical 
dispersal barrier located in the Chicago Sanitary and Ship Canal 
approximately 30 miles from Lake Michigan. The demonstration barrier, 
commonly referred to as ``Barrier I,'' generates a low-voltage electric 
field (a maximum of approximately one-volt per inch) across the canal, 
which connects the Illinois River to Lake Michigan. The electric field 
is created by pulsing low voltage DC current through steel cables 
secured to the bottom of the canal. 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 the spring of 2004, a commercial towboat operator reported an 
electrical arc between a wire rope and timberhead while making up a tow 
in the vicinity of the Barrier I. During subsequent Army Corps safety 
testing in January 2005, sparking was observed upon metal-to-metal 
contact between two independent barges in the barrier field.
    In 2006, the Army Corps completed construction of a second barrier, 
``Barrier IIA.'' Barrier IIA was constructed 800 to 1300 feet 
downstream of the Barrier I. Barrier IIA is designed to operate 
continuously at one-volt per inch, and can operate at higher levels. 
Because of its design, Barrier IIA can generate a more powerful 
electric field, over a larger area within the Chicago Sanitary and Ship 
Canal, than Barrier I. The potential field strength for Barrier IIA 
will be up to four times that of the Barrier I. Barrier IIA was 
successfully operated for the first time, for approximately seven weeks 
in September and October 2008, while Barrier I was taken down for 
maintenance. Construction on a third barrier (Barrier IIB) is planned; 
Barrier IIB would augment the capabilities of Barriers I and IIA.
    The electric current in the water poses a safety risk to commercial 
and recreational boaters transiting the area. The Navy Experimental 
Diving Unit (NEDU) was tasked with researching how the electric current 
from the barriers would affect a human body if immersed in the water. 
This comprehensive, independent analysis of Barriers I and IIA, 
conducted in 2008, at the one-volt per inch level, found a serious risk 
of injury or death to persons immersed in the water located adjacent to 
and over the barrier. 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. 
Additionally, sparking between barges transiting the barrier (a risk to 
flammable cargoes) occurred at the one-volt per inch level. Operating 
Barrier IIA at four-volts per inch (the maximum capacity) presents a 
higher risk; however, there is no data yet to indicate how much higher.
    A Safety Work Group facilitated by the Coast Guard and in 
partnership with the Army Corps 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. 
Eleven stakeholders have regularly attended the Safety Work Group. Key 
partners include the American Waterways Operators; Illinois River 
Carriers Association; Army Corps, Chicago District, Coast Guard Marine 
Safety Unit Chicago; Coast Guard Sector Lake Michigan; and the Ninth 
Coast Guard District. During the past 12 months, the Coast Guard has 
hosted 5 Safety Work Group meetings with full participation from 
stakeholders. The

[[Page 24724]]

Coast Guard and the Army Corps developed regulations and safety 
guidelines, with stakeholder input, which addressed the risks and 
hazards associated with operating the barriers at the one-volt per inch 
level. These regulations were published in 33 CFR 165.923, 70 FR 76692, 
Dec. 28, 2005, and in a series of temporary final rules: 71 FR 4488, 
Jan. 27, 2006; 71 FR 19648, Apr. 17, 2006; 73 FR 33337, Jun. 12, 2008; 
73 FR 37810, Jul. 2, 2008; 73 FR 45875, Aug. 7, 2008; and 73 FR 63633, 
Oct. 27, 2008.
    The Army Corps notified the Coast Guard in December 2008, that it 
planned to activate Barrier IIA on a full-time basis starting in middle 
to late January 2009. Due to technical issues, Barrier IIA was not 
activated until April 8, 2009. Both Barrier IIA and Barrier I are 
operating at the same time. Operation of both Barrier I and Barrier IIA 
at the same time provides a back up should one barrier cease to 
operate.
    The Coast Guard advised the Army Corps in December 2008, that it 
had no objection to the Army Corps activating Barrier IIA at a maximum 
strength of one-volt per inch, which is the operating strength of 
Barrier I. In addition, the Coast Guard advised the Army Corps that it 
did not object to the Army Corps' plans for additional testing of 
Barrier IIA at peak field strength of up to four-volts per inch. Peak 
field strength tests are necessary to evaluate safety risks to mariners 
and their vessels when Barrier IIA is operated at a higher voltage.
    Based on the commercial significance and successful transit history 
of the Barrier I by thousands of barges since its inception in April 
2002, and Barrier IIA during Fall 2008, the Coast Guard has not chosen 
to close the waterway despite the proven electrical discharge hazard 
and additional safety concerns. Tows spanning Barrier IIA and the coal-
fired power plant barge loading area just south of the regulated 
navigation area remain a concern. Accordingly, because of the safety 
risks involved, it is imperative that the Coast Guard implements 
increased safety measures for the operation of both Barriers I and IIA.
    To mitigate the safety risks created by operation of both barriers, 
the Coast Guard established a temporary interim rule (TIR) on January 
16, 2009, which placed navigational and operational restrictions on all 
vessels transiting through a regulated navigation area located adjacent 
to and over the barriers. 33 CFR 165.T09-1247, 74 FR 6357, Feb. 9, 
2009. The TIR public comment period closed on April 10, 2009. To date, 
no comments have been received regarding the TIR.
    This notice of proposed rulemaking (NPRM) proposes establishment of 
permanent regulations, similar to the regulations contained in the TIR. 
Like the TIR, this rule proposes placement of navigational and 
operational restrictions on all vessels transiting through a regulated 
navigation area located adjacent to and over the barriers. 
Specifically, the Coast Guard proposes requiring vessels transiting the 
regulated navigation area to adhere to specified operational and 
navigational requirements. In addition, the Coast Guard will 
occasionally enforce a safety zone, which prohibits the movement of all 
vessels and persons through the electrical dispersal barriers during 
tests or other periods of time that Barrier IIA is operated at voltages 
higher than one-volt per inch.
    To view the TIR, this NPRM, as well as documents mentioned in this 
preamble as being available in the docket, go to http://www.regulations.gov at any time, click on ``Search for Dockets,'' and 
enter the docket number for this rulemaking (USCG-2008-1247) in the 
Docket ID box, and click enter. You may also visit the Docket 
Management Facility in Room W12-140 on the ground floor of the DOT West 
Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Discussion of Proposed Rule

    This rule proposes removal of 33 CFR 165.923 and 33 CFR 165.T09-
1247. This rule proposes establishment of permanent regulations, which 
would place navigational and operational restrictions on all vessel 
transits through the navigable waters located adjacent to and over the 
electrical dispersal barriers located on the Chicago Sanitary and Ship 
Canal. The regulated navigation area encompasses all waters of the 
Chicago Sanitary and Ship Canal located between mile marker 295.0 
(approximately 1.1 miles south of the Romeo Road Bridge) and mile 
marker 297.5 (approximately 1.3 miles northeast of the Romeo Road 
Bridge). The requirements placed on commercial vessels include: (1) 
Vessels engaged in commercial service, as defined in 46 U.S.C. 2101(5), 
may not pass (meet or overtake) in the regulated navigation area and 
must make a SECURITE call when approaching the regulated navigation 
area to announce intentions; (2) vessels engaged in commercial service 
must work out passing arrangements prior to entering the regulated 
navigation area and may only pass (meet or overtake) another vessel 
outside of the regulated navigation area; (3) commercial tows 
transiting the regulated navigation area must be made up with wire rope 
to ensure electrical connectivity between all segments of the tow; and 
(4) all up-bound and down-bound barge tows that contain one or more red 
flag barges must be assisted by a bow boat until the entire tow is 
clear of the regulated navigation area. The Army Corps has informed the 
Coast Guard that the Army Corps will continue to contract bow boat 
assistance for barge tows containing one or more red flag barges 
through the remainder of the current fiscal year (i.e., through 
September 30, 2009). The Army Corps has informed the Coast Guard that 
it will request funds for bow boat assistance in its fiscal year 2010 
budget request. However, because of the federal budget process, there 
is currently no way to determine if those funds will be appropriated. 
In the event Army Corps funding would cease, operators of tows 
containing one or more red flag barges that need to transit through the 
regulated navigation area would incur the cost of bow boat assistance. 
Operators of tows containing one or more red flag barges must notify 
the bow boat contractor at least two hours prior to the need for 
assistance. The tow operator must then remain in contact with the 
contractor after the initial call for bow boat assistance and advise 
the contractor of any delays.
    Red flag barges are barges certificated to carry, in bulk, any 
hazardous material as defined in 46 CFR 150.115. Currently, 46 CFR 
150.115 defines hazardous material as:
    (a) A flammable liquid as defined in 46 CFR 30.10-22 or a 
combustible liquid as defined in 46 CFR 30.10-15;
    (b) A material listed in Table 151.05, Table 1 of part 153, or 
Table 4 of part 154 of Title 46, CFR; or
    (c) A liquid, liquefied gas, or compressed gas listed in 49 CFR 
172.101.
    This rule proposes additional restrictions and operating 
requirements on all vessels within a smaller portion of the regulated 
navigation area, specifically, the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.52 miles north east of Romeo Road Bridge). 
Within this smaller area, this rule proposes the prohibition of vessel 
loitering, mooring or laying up on the right or left descending banks, 
or making or breaking tows on the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline

[[Page 24725]]

located approximately 0.52 miles north east of Romeo Road Bridge). In 
addition, vessels may only enter the waters between the Romeo Road 
Bridge (approximate mile marker 296.18) and mile marker 296.7 (aerial 
pipeline located approximately 0.52 miles north east of Romeo Road 
Bridge) for the sole purpose of transiting to the other side and must 
maintain headway throughout the transit. All vessels and persons are 
prohibited from dredging, laying cable, dragging, fishing, conducting 
salvage operations, or any other activity, which could disturb the 
bottom of the canal in the area located between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.52 miles north east of Romeo Road Bridge). The 
rule also proposes that all persons on open decks of a vessel engaged 
in commercial service must wear a Coast Guard approved Type I personal 
flotation device while on the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.52 miles north east of Romeo Road Bridge). All 
persons on recreational vessels that are propelled or controlled by 
machinery, sails, oars, paddles, poles or another vessel must wear the 
Coast Guard approved personal flotation device (PFD) that is required 
to be onboard by 33 CFR Part 175, while on the waters between the Romeo 
Road Bridge (approximate mile marker 296.18) and mile marker 296.7 
(aerial pipeline located approximately 0.52 miles north east of Romeo 
Road Bridge).
    These restrictions are necessary for safe navigation of the 
regulated navigation area and to ensure the safety of vessels and their 
personnel as well as the public's safety due to the electrical 
discharges noted during safety tests conducted by the Army Corps. 
Deviation from this rule would be prohibited unless specifically 
authorized by the Commander, Ninth Coast Guard District, or his 
designated representatives. The Commander, Ninth Coast Guard District, 
will designate Captain of the Port Lake Michigan and Commanding 
Officer, Marine Safety Unit Chicago, as his designated representatives 
for the purposes of the proposed regulated navigation area.
    A safety zone would be enforced during tests or other periods of 
time that Barrier IIA is operated at voltages higher than one volt per 
inch. This proposed safety zone, which would encompass all the waters 
of the Chicago Sanitary and Ship Canal located between mile marker 
296.0 (approximately 958 feet south of the Romeo Road Bridge) and mile 
marker 296.7 (aerial pipeline located approximately 0.52 miles north 
east of Romeo Road Bridge), would be enforced by the Captain of the 
Port Lake Michigan, for such times before, during, and after barrier 
testing as he or she deems necessary to protect mariners and vessels 
from damage or injury. The Captain of the Port Lake Michigan would 
cause notice of enforcement or suspension of enforcement of this safety 
zone to be made by all appropriate means to effect the widest publicity 
among the affected segments of the public. Such means of notification 
will include, but will not be limited to, Broadcast Notice to Mariners 
and Local Notice to Mariners. The Captain of the Port Lake Michigan 
would issue a Broadcast Notice to Mariners notifying the public when 
enforcement of the safety zone is suspended. In addition, Captain of 
the Port Lake Michigan maintains a telephone line that is manned 24 
hours a day, seven days a week. The public may obtain information 
concerning enforcement of the safety zone by contacting the Captain of 
the Port Lake Michigan via the Coast Guard Sector Lake Michigan Command 
Center at 414-747-7182.

Regulatory Planning and Review

    This proposed 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. Nevertheless, we have 
prepared a preliminary Regulatory Analysis of potential costs and 
benefits which is available in the docket where indicated under the 
ADDRESSES section of this preamble. A summary of the analysis follows:
    This proposed rule would mitigate safety risks associated with the 
electrical fish barrier system in the Chicago Sanitary and Ship Canal 
near Romeoville, Illinois. The Army Corps operates and maintains the 
fish barrier. Navigational and operational restrictions are necessary 
for all vessels transiting through the navigable waters located 
adjacent to and over the barriers in order to mitigate safety risks.
    The proposed rule would establish a permanent regulated navigation 
area for navigable waters adjacent to and over the electrical fish 
barrier. The rulemaking would also require certain provisions while 
transiting the regulated navigation area, including bow boat assistance 
for tows with red flag barges. Other proposed requirements of this 
rulemaking clarify navigation requirements that are normal industry 
practice (e.g., commercial tows using wire ropes) or have been in 
existence since 2002 as a result of the Army Corps' development, 
operation, and maintenance of the electrical fish barrier. See the 
``Background and Purpose'' and ``Discussion of Proposed rule'' sections 
for additional details on the requirements.
    This proposed rule would affect traffic transiting over the 
electrical fish barrier and surrounding waters. The Army Corps 
maintains data about the commercial vessels using the Lockport Lock and 
Dam, which provides access to the proposed regulated navigation area. 
During 2007, the commercial traffic through the Lockport Lock consisted 
of 147 towing vessels and 13,411 barges. Of those, 100 towing vessels 
and 2,246 barges were handling red flag cargo. There were 983 lockages 
involving red flag barges in 2007.
    The potential cost associated with this proposed rule would be for 
bow boat assistance. The Army Corps currently covers this cost through 
contract funding. In the event that such funding would cease, operators 
needing to transit the regulated navigation area with one or more red 
flag barges would incur a cost of approximately $850 per one-way 
transit (i.e., based on current Army Corps funding estimates).
    If bow boat assistance funding were to cease, we estimate the 
undiscounted annual recurring cost to industry to be $835,550 (i.e., 
983 potential red flag transits x $850 for bow boat assistance fee). 
Based on this potential annual cost, we estimate the total present 
value 10-year (2010-2019) cost to industry of this proposed rule to be 
approximately $5.9 million at a seven percent discount rate and $7.1 
million at a three percent discount rate.
    We expect this proposed rule would mitigate the marine safety risks 
as a result of the permanent operation and maintenance of the 
electrical fish barriers. This rulemaking would also allow commerce to 
continue through the waters adjacent to or over these barriers.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed 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.

[[Page 24726]]

    An Initial Regulatory Flexibility Analysis (IRFA) discussing the 
impact of this proposed rule on small entities is available in the 
docket where indicated under the ``Public Participation and Request for 
Comments'' section of this preamble.
    From our analysis, we found the proposed rule would affect an 
estimated 23 entities, of which 10 are considered small entities 
according to SBA size standards. If operators incur the direct cost of 
bow boat assistance, we estimate five (or fifty percent) of the 
affected small entities would incur a cost impact of less than or equal 
to one percent of revenue and eight (or eighty percent) of the affected 
small entities would incur a cost impact of less than or equal to three 
percent of revenue.
    At this time, the Coast Guard certifies under 5 U.S.C. 605(b) that 
this proposed rule would not have a significant economic impact on a 
substantial number of small entities. 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 to the docket as detailed under ADDRESSES. In 
your comment explain why, how, and to what degree you think this 
proposed rule would have an economic impact on you.

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 may 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 LT Ann Henkelman, Waterways Management 
Branch, Ninth Coast Guard District, 1240 East Ninth Street, Cleveland, 
OH 44199; 216-902-6288. 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 proposed 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 proposed 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 
proposed 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 proposed 
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 proposed rule does not use technical standards. Therefore, we 
did not consider the use of voluntary consensus standards.

Environment

    We have analyzed this proposed 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 made a preliminary determination that this action is one of a 
category of actions which do not individually or cumulatively have a 
significant effect on the human environment. Therefore, this rule is 
categorically excluded, under section 2.B.2. Figure 2-1, paragraph 
34(g), of the Instruction and neither an environmental assessment nor 
an environmental impact statement is required. This rule involves the

[[Page 24727]]

establishing, disestablishing, or changing regulated navigation areas 
and security or safety zones. A preliminary ``Environmental Analysis 
Check List'' supporting this determination is available in the docket 
where indicated under the ``Public Participation and Request for 
Comments'' section of this preamble. We seek any comments or 
information that may lead to discovery of a significant environmental 
impact from this proposed rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard proposes 
to amend 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 3306, 3703 
and Chapter 701; 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  [Removed]

    2. Remove Sec.  165.923.
    3. Add Sec.  165.924 to read as follows:


Sec.  165.924  Regulated Navigation Area and Safety Zone, Chicago 
Sanitary and Ship Canal, Romeoville, IL

    (a) Regulated Navigation Area. The following is a Regulated 
Navigation Area: All waters of the Chicago Sanitary and Ship Canal, 
Romeoville, IL, located between mile marker 295.0 (approximately 1.1 
miles south of the Romeo Road Bridge) and mile marker 297.5 
(approximately 1.3 miles northeast of the Romeo Road Bridge).
    (1) Definitions. The following definitions apply to this section:
    Bow boat means a towing vessel capable of providing positive 
control of the bow of a tow containing one or more barges, while 
transiting the regulated navigation area. The bow boat must be capable 
of preventing a tow containing one or more barges from coming into 
contact with the shore and other moored vessels.
    Designated representatives means the Captain of the Port Lake 
Michigan and Commanding Officer, Marine Safety Unit Chicago.
    Hazardous material means any material as defined in 46 CFR 150.115.
    On-scene representative means any Coast Guard commissioned, warrant 
or petty officer who has been designated by the Captain of the Port 
Lake Michigan to act on his behalf.
    Red flag barge means any barge certificated to carry any hazardous 
material in bulk.
    (2) Regulations. (i) The general regulations contained in 33 CFR 
165.13 apply.
    (ii) All up-bound and down-bound barge tows that contain one or 
more red flag barges transiting through the regulated navigation area 
must be assisted by a bow boat until the entire tow is clear of the 
regulated navigation area.
    (iii) Vessels engaged in commercial service, as defined in 46 U.S.C 
2101(5), may not pass (meet or overtake) in the regulated navigation 
area and must make a SECURITE call when approaching the regulated 
navigation area to announce intentions. Vessels engaged in commercial 
service must work out passing arrangements prior to entering the 
regulated navigation area and may only pass (meet or overtake) another 
vessel outside of the regulated navigation area.
    (iv) Commercial tows transiting the regulated navigation area must 
be made up with wire rope to ensure electrical connectivity between all 
segments of the tow.
    (v) All vessels are prohibited from loitering between the Romeo 
Road Bridge (approximate mile marker 296.18) and mile marker 296.7 
(aerial pipeline located approximately 0.52 miles north east of Romeo 
Road Bridge).
    (vi) Vessels may enter the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.52 miles north east of Romeo Road Bridge) for 
the sole purpose of transiting to the other side and must maintain 
headway throughout the transit. All vessels and persons are prohibited 
from dredging, laying cable, dragging, fishing, conducting salvage 
operations, or any other activity, which could disturb the bottom of 
the canal in the area located between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.52 miles north east of Romeo Road Bridge).
    (vii) All persons on open decks of a vessel engaged in commercial 
service must wear a Coast Guard approved Type I personal flotation 
device (PFD) while in the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.52 miles north east of Romeo Road Bridge). All 
persons on recreational vessels that are propelled or controlled by 
machinery, sails, oars, paddles, poles or another vessel must wear the 
Coast Guard approved PFD that is required to be onboard by 33 CFR Part 
175, while on the waters between the Romeo Road Bridge (approximate 
mile marker 296.18) and mile marker 296.7 (aerial pipeline located 
approximately 0.52 miles north east of Romeo Road Bridge).
    (viii) Vessels may not moor or lay up on the right or left 
descending banks of the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.52 miles north east of Romeo Road Bridge).
    (ix) Towboats may not make or break tows if any portion of the 
towboat or tow is located in the waters between the Romeo Road Bridge 
(approximate mile marker 296.18) and mile marker 296.7 (aerial pipeline 
located approximately 0.52 miles north east of Romeo Road Bridge).
    (3) Compliance. All persons and vessels must comply with this 
section and any additional instructions or orders of the Ninth Coast 
Guard District Commander, or his designated representatives.
    (4) Waiver. For any vessel, the Ninth Coast Guard District 
Commander, or his designated representatives, may waive any of the 
requirements of this section, upon finding that operational conditions 
or other circumstances are such that application of this section is 
unnecessary or impractical for the purposes of vessel and mariner 
safety.
    (b) Safety Zone. (1) The following area is a safety zone: All 
waters of the Chicago Sanitary and Ship Canal located between mile 
marker 296.0 (approximately 958 feet south of the Romeo Road Bridge) 
and mile marker 296.7 (aerial pipeline located approximately 0.52 miles 
north east of Romeo Road Bridge).
    (2) Notice of enforcement or suspension of enforcement. The Captain 
of the Port Lake Michigan will enforce the safety zone established by 
this section only upon notice. Captain of the Port Lake Michigan will 
cause notice of the enforcement of this safety zone to be made by all 
appropriate means to effect the widest publicity among the affected 
segments of the public including publication in the Federal Register as 
practicable, in accordance with 33 CFR 165.7(a). Such means of 
notification may also include, but are not limited to, Broadcast Notice 
to Mariners or Local Notice to Mariners. The Captain of the Port Lake 
Michigan will issue a Broadcast Notice to Mariners and Local Notice to 
Mariners notifying the public when enforcement of these safety zones is 
suspended.

[[Page 24728]]

    (3) Regulations. (i) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into, transiting, or anchoring within 
this safety zone is prohibited unless authorized by the Captain of the 
Port Lake Michigan, or his on-scene representative.
    (ii) This safety zone is closed to all vessel traffic, except as 
may be permitted by the Captain of the Port Lake Michigan or his on-
scene representative.
    (iii) The on-scene representative of the Captain of the Port Lake 
Michigan may be aboard either a Coast Guard or Coast Guard Auxiliary 
vessel. The Captain of the Port Lake Michigan 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: May 12, 2009.
D.R. Callahan,
Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District 
Acting.
[FR Doc. E9-12179 Filed 5-22-09; 8:45 am]
BILLING CODE 4910-15-P