[Federal Register Volume 74, Number 225 (Tuesday, November 24, 2009)]
[Rules and Regulations]
[Pages 61278-61283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28183]



[[Page 61278]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-1004]
RIN 1625-AA11


Safety and Security Zone, Chicago Sanitary and Ship Canal, 
Romeoville, IL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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

SUMMARY: The Coast Guard is establishing temporary safety and security 
zones on the Chicago Sanitary and Ship Canal (CSSC) near Romeoville, 
IL. This temporary final rule is intended to restrict all vessels from 
transiting the navigable waters of the CSSC. The safety and security 
zones are necessary to protect the waters, waterway users and vessels 
from hazards associated with the U.S. Army Corps of Engineers (USACE) 
electrical dispersal barrier and for the preparation and safe 
application of a fish toxicant during a period of time when the barrier 
will be disabled to conduct maintenance.

DATES: This temporary final rule is effective from 5 p.m. on November 
24, 2009, until 5 p.m. on December 18, 2009. This temporary final rule 
is enforceable with actual notice by Coast Guard personnel beginning 
November 16, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-1004 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-1004 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at 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, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary final rule, call CDR Tim Cummins, Deputy Prevention Division, 
Ninth Coast Guard District, telephone 216-902-6045. If you have 
questions on viewing the docket, call Renee V. Wright, Program Manager, 
Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for, good cause, finds that 
those procedures are ``impracticable, unnecessary, or contrary to the 
public interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that 
good cause exists for not publishing a notice of proposed rulemaking 
(NPRM) because the USACE made the decision, without time for a proper 
notice period, to permanently increase the voltage of the fish barrier 
to two-volts per inch in response to data which indicates that Asian 
carp are closer to the Great Lakes waterway system than originally 
thought. The electric current in the water created by the electrical 
dispersal barriers coupled with the uncertainty of the effects of the 
increased voltage poses a safety risk to commercial vessels and 
recreational boaters who transit the area. As such, a safety and 
security zone is being enacted to ensure the safety of vessels 
operating in the vicinity of the electrical dispersal barrier.
    In addition, the emergent planning and execution of maintenance to 
Barrier IIA by the USACE and the preventative application of the fish 
toxicant (rotenone), under the direction of the Illinois Department of 
Natural Resources (IDNR) and the Federal coordination of the U.S. 
Environmental Protection Agency (EPA) resulted in good cause for not 
publishing an NPRM as there was insufficient time for proper notice. 
During IDNR's deployment of rotenone, the Coast Guard will enact a 
safety and security zone to provide for the safety and security of the 
waters, the waterway facilities and the vessels operating between the 
Lockport Lock and Dam and the electrical dispersal barrier.
    The application of rotenone to the CSSC will ensure Asian carp do 
not transit across the fish barrier when Barrier IIA is taken off line 
and Barrier I, which only operates at one volt per inch, is the sole 
prophylactic from preventing the Asian carp from entering the Great 
Lakes. The effective application of rotenone is essential in preventing 
the Asian carp from surviving the application. IDNR reports indicate 
that vessels moored along the Canal wall could create pockets or eddies 
where the fish toxicant is not able to reach all of the Asian Carp 
necessitating the Captain of the Port (COTP) Sector Lake Michigan to 
order their immediate removal from the safety and security zone. 
Exceptions may possibly be granted upon the review of COTP Sector Lake 
Michigan.
    Rotenone has potential for adverse effects on humans. As such, 
delaying this rule would be contrary to the public interest of ensuring 
the safety and security of waterway users and vessels during the 
preparations, application and clean-up from the use of rotenone.
    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 because of the safety and security 
risk to the waters, commercial vessels and recreational boaters who 
transit the area. The following discussion and the Background and 
Purpose section below provide additional support of the Coast Guard's 
determination that good cause exists for not publishing a NPRM and for 
making this rule effective less than 30 days after publication.
    In 2002, the USACE energized a demonstration electrical dispersal 
barrier located in the Chicago Sanitary and Ship Canal. The 
demonstration barrier, commonly referred to as ``Barrier I,'' generates 
a low-voltage electric field (one-volt per inch) across the canal, 
which connects the Illinois River to Lake Michigan. Barrier I was built 
to block the passage of aquatic nuisance species, such as Asian carp, 
and prevent them from moving between the Mississippi River basin and 
Great Lakes via the canal.
    In 2006, the USACE completed construction of a new barrier, 
``Barrier IIA.'' Because of its design, Barrier IIA can generate a more 
powerful electric field (up to four-volts per inch), over a larger area 
within the Chicago Sanitary and Ship Canal, than Barrier I. Testing was 
conducted by the USACE which indicated that two-volts per inch is the 
optimal voltage to deter aquatic nuisance species. The USACE's original 
plan was to perform testing on the effects of the increased voltage on 
vessels passing through the fish barrier prior to permanently 
increasing the voltage. However, after receiving data that the Asian 
carp were closer to the Great Lakes than expected, the decision was 
made to immediately energize the barrier to two-volts per inch without 
prior testing.
    A comprehensive, independent analysis of Barrier IIA, conducted in 
2008 by the USACE at the one-volt per inch level, found a serious risk 
of injury or death to persons immersed in the water located adjacent to 
and over the barrier. Additionally, sparking between barges transiting 
the barrier (a risk to flammable cargoes) occurred at the one-volt per 
inch level. The Coast Guard and

[[Page 61279]]

USACE developed regulations and safety guidelines, with stakeholder 
input, which addressed the risks and hazards associated with operating 
the barriers at the one-volt per inch level. These regulations were 
published in 33 CFR 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). A temporary 
interim rule was issued on February 9, 2009 (74 FR 6352). Finally, an 
NPRM was issued on May 26, 2009 (74 FR 24722).
    In October of 2009, the USACE notified the Coast Guard that barrier 
IIA needed to be shut-down for required maintenance. As a result, the 
IDNR, in the coordination of the EPA, will apply rotenone to the CSSC 
to ensure Asian Carp do not transit through the CSSC while Barrier IIA 
is disabled. The Coast Guard's understanding is that the application of 
the rotenone will take approximately fifteen (15) hours followed by 
neutralizing and clean-up. The application, neutralizing and clean-up 
is expected to take a minimum of five days and a maximum of ten (10) 
days. For any questions related to the application of rotenone, please 
contact Mr. Bill Bolen, U.S. Environmental Protection Agency, Senior 
Advisor, Great Lakes National Program Office, 77 W. Jackson Blvd., 
Chicago, IL 60604, at (312) 353-6316.
    Until Barrier IIA is shut-down, the risks to persons and vessels 
are on-going and immediate action is needed to prevent injury to the 
people, vessels and waters. When the electrical power to Barrier IIA is 
secured for maintenance and rotenone is applied to the CSSC, the risk 
to persons and vessels continues to exist although now from an 
alternative source. The timing of the decision to use rotenone during 
the maintenance did not provide an opportunity for full notice and 
comment period. Until on-scene preparations begin on December 2, 2009, 
for the application of rotenone, the Captain of the Port Sector Lake 
Michigan will make every effort to permit vessels to pass over the fish 
barrier while it is operating at the two volt per inch level. Once 
preparations begin on December 2, 2009, until clean-up is complete 
which at the earliest will be December 7 but may last until December 
14, no vessels, except those being used for the rotenone application 
and clean-up, will be permitted to enter or remain in the safety and 
security zones. As areas become neutralized and the necessary clean up 
action has been completed, the Captain of the Port Sector Lake Michigan 
will re-open certain portions of the waterways in an effort to minimize 
commerce disruption.
    Prior to December 2, 2009, vessels that comply with the regulations 
as set forth in this temporary rule may transit through the safety and 
security zones. After December 2, 2009, all vessels desiring to enter 
the safety and security zones must receive permission from the Captain 
of the Port Sector Lake Michigan to do so and must follow all orders 
from the Captain of the Port Sector Lake Michigan or her designated on-
scene representative while in the zone. As soon as the rotenone clean-
up efforts are complete, the security and safety zone from the Lockport 
Lock and Dam to the electric dispersal barrier will be removed. Upon 
completion of the rotenone clean-up efforts, the safety and security 
zone encompassing the electric dispersal barrier will remain in place; 
however, the Captain of the Port Sector Lake Michigan will permit 
vessels complying with the regulations set forth in this rule to 
transit through the zone.
    The Captain of the Port Sector Lake Michigan maintains a live radio 
watch on VHF-FM Channel 16 and a telephone line that is manned 24 hours 
a day, seven days a week. The public can obtain information concerning 
enforcement of the safety zone by contacting the Captain of the Port 
Sector Lake Michigan via the Coast Guard Sector Lake Michigan Command 
Center at 414-747-7182.

Background and Purpose

    The Non-indigenous Aquatic Nuisance Prevention and Control Act of 
1990, as amended by the National Invasive Species Act of 1996, 
authorized the USACE to conduct a demonstration project to identify an 
environmentally sound method for preventing and reducing the dispersal 
of non-indigenous aquatic nuisance species through the Chicago Sanitary 
and Ship Canal. The USACE selected an electric barrier because it is a 
non-lethal deterrent with a proven history, which does not overtly 
interfere with navigation in the canal.
    A demonstration dispersal barrier (Barrier I) was constructed and 
has been in operation since April 2002. It is located approximately 30 
miles from Lake Michigan and creates an electric field in the water by 
pulsing low voltage DC current through steel cables secured to the 
bottom of the canal. A second barrier, Barrier IIA, was constructed 800 
to 1300 feet downstream of the Barrier I. The potential field strength 
for Barrier IIA 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 
in the initial stages; Barrier IIB will augment the capabilities of 
Barriers I and IIA.
    In the spring of 2004, a commercial towboat operator reported an 
electrical arc between a wire rope and timberhead while making up a tow 
in the vicinity of the Barrier I. During subsequent USACE safety 
testing in January 2005, sparking was observed at points where metal-
to-metal contact occurred between two barges in the barrier field.
    The electric current in the water also poses a safety risk to 
commercial and recreational boaters transiting the area. The Navy 
Experimental Diving Unit (NEDU) was tasked with researching how the 
electric current from the barriers would affect a human body if 
immersed in the water. The NEDU 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.
    Based on the safety hazards associated with electric current 
flowing through navigable waterways and the uncertainty of the effects 
of higher voltage on people and vessels that pass over and adjacent to 
the barriers, the Coast Guard implemented a safety zone restricting use 
of the waterway until proper testing and analysis of such testing can 
be completed by the USACE. As the testing results were, and continue to 
be analyzed, the Coast Guard has permitted, on a case by case basis, 
vessel transits so long as the vessels met certain operational 
restrictions.
    As soon as safety testing and analysis are completed, the Coast 
Guard plans on publishing a new temporary interim rule (TIR) with 
requests for comments. Although the Coast Guard anticipates being able 
to continue to permit some vessels to transit through the fish barrier 
after testing is complete, it is currently anticipated that any 
subsequent TIR will continue to place restrictions on vessels including 
prohibiting some vessels from transiting through the fish barrier 
entirely. The Coast Guard will then likely follow with a supplemental 
notice of proposed rulemaking (SNPRM) in order to provide a complete 
notice and comment period for interested parties.
    Until on-scene preparations begin on December 2, 2009, for the 
application of rotenone, the Captain of the Port Sector Lake Michigan 
will make every effort to permit vessels to pass over the fish barrier 
while it is operating at the two volt per inch level. Once preparations

[[Page 61280]]

begin on December 2, 2009, until clean-up is complete which at the 
earliest will be December 7 but may last until December 14, no vessels 
except those being used for the rotenone application and clean-up will 
be permitted to enter or remain in the safety and security zone. The 
Captain of the Port Sector Lake Michigan will cause notice of the Coast 
Guard again permitting vessels on a case by case basis, or those 
complying with this regulation set forth in this rule, to transit the 
safety zone to be made by all appropriate means to affect the widest 
publicity among the affected segments of the public.

Discussion of Rule

    This temporary final rule removes 33 CFR 165.T09-0942. This rule 
suspends 33 CFR 65.923 until 5 p.m. on December 18, 2009. This rule 
places a safety and security zone on all waters of the Chicago Sanitary 
Ship Canal from mile-marker 291 (Lockport Lock and Dam) to mile-marker 
296. The rule also placed a safety and security zone from mile-marker 
296 to mile-marker 297.7 which is located adjacent to and over the 
electrical dispersal barriers on the Chicago Sanitary and Ship Canal.
    The electrical dispersal barrier safety and security zone will be 
in effect at all times the USACE operates the electrical dispersal 
barrier. The Coast Guard has deemed this safety and security zone 
necessary from November 16, 2009, until December 18, 2009, because 
safety testing and analysis is still being conducted on vessels to 
determine whether and under what conditions vessels can safely pass 
adjacent to and over the electrical dispersal barriers. In addition, 
the safety and security zone is necessary to protect the waters, 
commercial vessels and recreational boaters who transit the area during 
the preparation, application and clean-up of the rotenone application.
    Until 8 a.m. on December 2, 2009, vessels that comply with the 
following restrictions are permitted to transit the electrical 
dispersal barrier safety and security zone:
    (1) Vessels must be greater than twenty feet in length;
    (2) Vessel must not be a personal watercraft of any kind (i.e., jet 
skis, wave runners, kayak, etc.);
    (3) All up-bound and down-bound tows that consist of barges 
carrying flammable liquid cargos (grade A through C, flashpoint below 
140 degrees Fahrenheit, or heated to within 15 degrees Fahrenheit of 
flash point) must engage the services of a bow boat at all times until 
the entire tow is clear of the safety and security zone;
    (4) Vessels engaged in commercial service, as defined in 46 U.S.C 
2101(5), may not pass (meet or overtake) in the safety zone and must 
make a SECURITE call when approaching the safety and security zone to 
announce intentions and work out passing arrangements on either side;
    (5) Commercial tows transiting the safety and security zone must be 
made up with wire rope to ensure electrical connectivity between all 
segments of the tow;
    (6) All vessels are prohibited from loitering in the safety and 
security zone;
    (7) Vessels may enter the safety zone 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 safety zone;
    (8) All personnel in the safety zone on open decks must wear a 
Coast Guard approved Type I personal flotation device;
    (9) Vessels may not moor or lay up on the right or left descending 
banks of the safety zone; and,
    (10) Towboats may not make or break tows if any portion of the 
towboat or tow is located in the safety zone.
    With respect to the safety and security zone from the Lockport Lock 
and Dam to the electrical dispersal barrier (from mile-marker 291 to 
296), until December 2, 2009, all up-bound and down-bound vessels 
engaged in commercial service, as defined in 46 U.S.C. 2101(5), are 
permitted to transit through safety and security zone. Vessels may not 
moor or lay up in the safety and security zone unless preparing to, or 
engaging in, loading or unloading operations. Any vessel not actively 
preparing to, or currently engaged in, loading and unloading operations 
must ask for permission for the Captain of the Port to remain in the 
safety and security zone.
    On December 2, 2009, preparations will begin for the application of 
rotenone at which time the Captain of the Port Sector Lake Michigan 
will prohibit all vessels from transiting either safety and security 
zone. As soon as the rotenone clean-up efforts are complete, the 
security and safety zone from the Lockport Lock and Dam to the electric 
dispersal barrier will be removed. Upon completion of the rotenone 
clean-up efforts, the safety and security zone encompassing the 
electric dispersal barrier will remain in place; however, the Captain 
of the Port Sector Lake Michigan will permit vessels complying with the 
regulations set forth in this rule to transit through the zone.
    The Captain of the Port Sector Lake Michigan will cause notice of 
the Coast Guard again permitting vessels to transit the electrical 
dispersal barrier safety zone by all appropriate means to affect the 
widest publicity among 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. In addition, Captain of the 
Port Sector Lake Michigan maintains a telephone line that is manned 24 
hours a day, seven days a week. The public can obtain information 
concerning enforcement of the safety and security zones by contacting 
the Captain of the Port Sector Lake Michigan via the Coast Guard Sector 
Lake Michigan Command Center at 414-747-7182.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on thirteen (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.
    We expect the economic impact of this rule to be minimal. This 
determination is based the following: (1) Initial test results at the 
current operating parameters of two volts per inch indicate that the 
majority of commercial and recreational vessels that regularly transit 
the Chicago Sanitary and Ship Canal will be permitted to enter the 
safety zone under certain conditions; and, (2) every effort will be 
made to reduce the closure time of the canal following the shutdown of 
Barrier IIA for maintenance and rotenone application.
    Because these safety and security zones must be implemented 
immediately without a full notice and comment period, the full economic 
impact of this rule is difficult to determine at this time. The Coast 
Guard urges interested parties to submit comments that specifically 
address the economic impacts of permanent or temporary closures of the 
Chicago Sanitary and Ship Canal. Comments can be made online by going 
to http://www.regulations.gov, inserting USCG-2009-0942 in the 
``Keyword'' box, and then clicking ``Search.''

[[Page 61281]]

Small Entities

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires 
agencies to consider whether regulatory actions would have a 
significant economic impact on a substantial number of small entities. 
The term ``small entities'' comprises small businesses, not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. An RFA analysis is not required when a 
rule is exempt from notice and comment rulemaking under 5 U.S.C. 
553(b). The Coast Guard determined that this rule is exempt from notice 
and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). Therefore, an 
RFA analysis is not required for this rule. The Coast Guard, 
nonetheless, expects that this temporary final rule will not have a 
significant economic impact on a substantial number of small entities.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small 
entities in understanding the rule so that they can better evaluate its 
effects on them and participate in the rulemaking process.
    Small businesses may send comments on the actions of Federal 
employees who enforce, or otherwise determine compliance with, Federal 
regulations to the Small Business and Agriculture Regulatory 
Enforcement Ombudsman and the Regional Small Business Regulatory 
Fairness Boards. The Ombudsman evaluates these actions annually and 
rates each agency's responsiveness to small business. If you wish to 
comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR 
(1-888-734-3247). The Coast Guard will not retaliate against small 
entities that question or complain about this rule or any policy or 
action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    The Coast Guard recognizes the treaty rights of Native American 
Tribes. Moreover, the Coast Guard is committed to working with Tribal 
Governments to implement local policies and to mitigate Tribal 
concerns. We have determined that these regulations and fishing rights 
protection need not be incompatible. We have also determined that this 
rule does not have Tribal implications under Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes. Nevertheless, Indian Tribes 
that have questions concerning the provisions of this rule or options 
for compliance are encouraged to contact the point of contact listed 
under FOR FURTHER INFORMATION CONTACT.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security 
Management Directive 023-01 and Commandant Instruction M16475.lD, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that this action is one of the category of actions which do not 
individually or cumulatively have significant effect on the human 
environment. Therefore, this rule is categorically excluded, under 
section 2.B.2 Figure 2-1, paragraph (34)(g), of the Instruction and 
neither an environmental assessment nor an environmental impact 
statement is required. This rule involves the establishing, 
disestablishing, or changing of a security or safety zone. An 
environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated

[[Page 61282]]

under ADDRESSES. The Coast Guard's environmental responsibilities 
extend only to the creation of a safety and security zone and do not 
address the application of rotenone. Any questions regarding the 
rotenone operation should be addressed to Mr. Bill Bolen, U.S. 
Environmental Protection Agency, Senior Advisor, Great Lakes National 
Program Office, 77 W. Jackson Blvd., Chicago, IL 60604, at (312) 353-
6316.

List of Subjects in 33 CFR Part 165

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


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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

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


Sec.  165.T09-0942  [Removed]

0
2. Remove Sec.  165.T09-0942.


Sec.  165.923  [Suspended]

0
3. Section 165.923 is suspended until December 18, 2009.

0
4. A new temporary section 165.T09-1004 is added as follows:


Sec.  165.T09-1004  Safety and Security Zone, Chicago Sanitary and Ship 
Canal, Romeoville, IL.

    (a) Lockport Lock to Electrical Dispersal Barrier Safety and 
Security Zone. (1) The following area is a temporary safety and 
security zone: All waters of the Chicago Sanitary and Ship Canal 
located between mile marker 291.0 (Lockport Lock and Dam) and mile 
marker 296.0 (approximately 958 feet south of the Romeo Road Bridge).
    (2) Enforcement Period. The safety and security zone will be 
enforced from 5 p.m. on November 16, 2009, until 5 p.m. on December 18, 
2009. Beginning November 16, 2009, the Coast Guard will use actual 
notice to enforce this safety and security zone until this rule is 
published in the Federal Register.
    (3) Regulations. (i) In accordance with the general regulations in 
section 165.23 of this part, entry into, transiting, or anchoring 
within this safety and security zone is prohibited unless authorized by 
the Captain of the Port Sector Lake Michigan, or her on-scene 
representative.
    (ii) 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 Sector Lake Michigan to act on 
her behalf. The on-scene representative of the Captain of the Port 
Sector Lake Michigan will be aboard a Coast Guard, Coast Guard 
Auxiliary, or other designated vessel or will be on shore and will 
communicate with vessels via VHF-FM radio, loudhailer, or by phone. The 
Captain of the Port Sector Lake Michigan or her on-scene representative 
may be contacted via VHF-FM radio Channel 16 or the Coast Guard Sector 
Lake Michigan Command Center at 414-747-7182.
    (iii) Vessel operators desiring to enter or operate within the 
safety and security zone must comply with the provisions of paragraph 
(a)(4)(iv) or contact the Captain of the Port Sector Lake Michigan or 
her on-scene representative to obtain permission to do so. Vessel 
operators given permission to enter or operate in the safety and 
security zone must comply with all directions given to them by the 
Captain of the Port Sector Lake Michigan or her on-scene 
representative.
    (iv) Until 8 a.m. on December 2, 2009, all up-bound and down-bound 
vessels engaged in commercial service, as defined in 46 U.S.C. 2101(5), 
are permitted to transit through the safety zone. Vessels may not moor 
or lay up in the safety and security zone unless preparing to, or 
engaging in, loading or unloading operations. Any vessel not actively 
preparing to, or currently engaged in, loading and unloading operations 
must ask for permission for the Captain of the Port to remain in the 
safety and security zone.
    (v) Starting at 8 a.m. on December 2, 2009, this safety zone and 
security zone is closed to all vessel traffic, except as may be 
permitted by the Captain of the Port Sector Lake Michigan or her on-
scene representative. As soon as clean-up efforts from the rotenone 
application are complete, the Captain of the Port will cause notice of 
the enforcement of the safety and security zone being removed by all 
appropriate means to effect the widest publicity among the affected 
segments of the public. Such means of notification include but are not 
limited to, Broadcast Notice to Mariners or Local Notice to Mariners.
    (b) Electrical Dispersal Barrier Safety and Security Zone. (1) The 
following area is a temporary safety and security 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 
297.7 (approximately one mile north of the electrical dispersal 
barrier).
    (2) Enforcement Period. The safety zone will be enforced from 5 
p.m. on November 16, 2009, until 5 p.m. on December 18, 2009. Beginning 
November 16, 2009, the Coast Guard will use actual notice to enforce 
this safety zone until this rule is published in the Federal Register.
    (3) Definitions. The following definitions apply to paragraph (b) 
of 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.
    (4) Regulations. (i) 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 Sector Lake Michigan, or her representative.
    (ii) The ``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 Sector Lake Michigan to act on her behalf. The 
representative of the Captain of the Port Sector Lake Michigan will be 
aboard a Coast Guard, Coast Guard Auxiliary, or other designated vessel 
or will be on shore and will communicate with vessels via VHF-FM radio, 
loudhailer, or by phone. The Captain of the Port Sector Lake Michigan 
or her representative may be contacted via VHF-FM radio Channel 16 or 
the Coast Guard Sector Lake Michigan Command Center at 414-747-7182.
    (iii) Vessel operators desiring to enter or operate within the 
safety and security zone must comply with the provisions of paragraph 
(b)(4)(iv) or shall contact the Captain of the Port Sector Lake 
Michigan or her representative to obtain permission to do so. Vessel 
operators given permission to enter or operate in the safety and 
security zone must comply with all directions given to them by the 
Captain of the Port Sector Lake Michigan or her representative.
    (iv) Until 8 a.m. on December 2, 2009, vessels that comply with the 
following restrictions are permitted to transit the safety and security 
zone and the following regulations apply:
    (A) Vessels must be greater than twenty feet in length.
    (B) Vessel must not be a personal watercraft of any kind (i.e., jet 
skis, wave runners, kayak, etc.).

[[Page 61283]]

    (C) All up-bound and down-bound tows that consist of barges 
carrying flammable liquid cargos (grade A through C, flashpoint below 
140 degrees Fahrenheit, or heated to within 15 degrees Fahrenheit of 
flash point) must engage the services of a bow boat at all times until 
the entire tow is clear of the safety and security zone.
    (D) Vessels engaged in commercial service, as defined in 46 U.S.C. 
2101(5), may not pass (meet or overtake) in the safety zone and must 
make a SECURITE call when approaching the safety zone to announce 
intentions and work out passing arrangements on either side.
    (E) Commercial tows transiting the safety zone must be made up with 
wire rope to ensure electrical connectivity between all segments of the 
tow.
    (F) All vessels are prohibited from loitering in the safety and 
security zone.
    (G) Vessels may enter the safety and security zone 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 safety and security zone.
    (H) If a vessel is permitted by the Captain of the Port Sector Lake 
Michigan or her representative to transit the safety and security zone, 
all personnel should remain on open decks inside the cabin, or as 
inboard as practicable and wear a Coast Guard approved Type I personal 
flotation device. Alternatively, personnel on recreational vessels may 
wear a Coast Guard approved personal flotation device under 33 CFR Part 
175 while in the safety zone.
    (I) Vessels may not moor or lay up on the right or left descending 
banks of the safety zone.
    (J) Towboats may not make or break tows if any portion of the 
towboat or tow is located in the safety zone.
    (v) Starting at 8 a.m. on December 2, 2009, this safety and 
security zone is closed to all vessel traffic, except as may be 
permitted by the Captain of the Port Sector Lake Michigan or her 
representative. As soon as clean-up efforts from the rotenone 
application are complete, the Captain of the Port will cause notice of 
the safety and security zone being open to vessel transits, so long as 
the vessels comply with regulations described in paragraph (b)(4)(iv) 
of this section, by all appropriate means to effect the widest 
publicity among the affected segments of the public. Such means of 
notification include but are not limited to, Broadcast Notice to 
Mariners or Local Notice to Mariners.
    (vi) Persons on board any vessel transiting this safety and 
security zone in accordance with this rule or otherwise are advised 
they do so at their own risk.

    Dated: November 16, 2009.
D.R. Callahan,
Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District, 
Acting.
[FR Doc. E9-28183 Filed 11-23-09; 8:45 am]
BILLING CODE 9110-04-P