[Federal Register Volume 75, Number 122 (Friday, June 25, 2010)]
[Rules and Regulations]
[Pages 36288-36291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15398]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-1080]
RIN 1625-AA00, 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Temporary interim rule with request for comments.

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SUMMARY: The Coast Guard is revising its safety zone and Regulated 
Navigation Area (RNA) on the Chicago Sanitary and Ship Canal (CSSC) 
near Romeoville, IL. This revised temporary interim rule reduces the 
areas covered by the safety zone and RNA, and places additional 
restrictions on vessels that may transit the RNA.

DATES: Effective Date: Temporary section, Sec.  165.T09-1080, is 
effective June 25, 2010 until 5 p.m. on December 1, 2010. This revision 
is enforceable with actual notice beginning upon date of signature.
    Comment Period: Comments and related material must reach the Docket 
Management Facility on or before August 24, 2010.

ADDRESSES: You may submit comments identified by docket number USCG-
2009-1080 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.''

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call Commander 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: 

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-2009-1080), 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 telephone 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-2009-1080'' 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[frac12] 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 this 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-2009-1080 in the Docket ID box, press Enter, and 
then click on the item in the Docket ID column. You may also visit 
either 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 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 using one of the four methods specified under 
ADDRESSES. Please

[[Page 36289]]

explain why you believe a public meeting would be beneficial. If we 
determine that one would aid this rulemaking, we will hold one at a 
time and place announced by a later notice in the Federal Register.

Regulatory Information

    The Coast Guard is issuing this temporary interim 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.'' For the reasons discussed below, 
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) with respect 
to this rule based upon data which indicates that Asian carp are much 
closer to the Great Lakes waterway system than originally thought. The 
possibility exists that vessels will transport Asian carp eggs, 
gametes, or juvenile fish safely through the electrical dispersal 
barrier in water attained south of the fish barrier that is then 
transported and discharged on the other side of the barrier. The Asian 
carp are the subject of an ongoing multi-agency study aimed at 
preventing their introduction into the Great Lakes. The proposed 
temporary safety zone and RNA will allow that multi-agency effort to 
progress towards its goal of protecting people, vessels, and the 
environment from the hazards associated with the possible introduction 
of invasive species such as Asian carp into the Great Lakes.
    As such, the USCG must take immediate steps in order to prevent 
possible introduction of Asian carp before the ongoing effort can be 
completed. Therefore, it would be against the public interest to delay 
the issuing of this rule. Additionally, for the same reasons, the Coast 
Guard finds that good cause exists for making this rule effective less 
than 30 days after publication in the Federal Register under 5 U.S.C. 
553(d)(3).
    For additional discussion of the good cause surrounding the 
issuance of the safety zone and RNA being revised by this rule, refer 
to the issuance of the initial temporary final rule on January 6, 2010 
(75 FR 754, 755).

Background and Purpose

    The discussion that follows was published previously in the initial 
temporary final rule on January 6, 2010 (75 FR 754).
    The Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990, as amended by the National Invasive Species Act of 1996, 
authorized the United States Army Corps of Engineers (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 (CSSC). 
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 is 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 2009, 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.
    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 Barrier I. During subsequent USACE safety testing, 
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 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.
    A Safety Work Group facilitated by the Coast Guard and in 
partnership with the USACE 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. The 
Safety Work Group has regularly been attended by eleven stakeholders, 
including industry representatives such as the American Waterways 
Operators and Illinois River Carriers Association, the Army Corps of 
Engineers Chicago District, Coast Guard Marine Safety Unit Chicago, 
Coast Guard Sector Lake Michigan/Captain of the Port Lake Michigan, and 
the Ninth Coast Guard District.
    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 is implementing operational restrictions, 
via an RNA, on vessels until proper testing and analysis of such 
testing can be completed by the USACE. The Coast Guard appreciates the 
commercial significance of this waterway and will work closely with the 
USACE to reduce operational restrictions as soon as possible; however, 
it is imperative that the RNA be immediately enacted to avoid loss of 
life.
    On December 2, 2009, rotenone, a fish toxicant, was applied to 
approximately six miles of the CSSC while barrier maintenance was 
conducted to ensure no fish were able to transit the barrier. One 
Silver Carp was found in the area immediately south of the barrier. 
Similarly e-dna was detected north of the barrier, in an area of the 
Cal Sag Channel immediately below the O'Brien Locks and at the 
confluence of the Cal Sag Channel and the CSSC. This e-dna indicates 
the potential presence of Carp, but in the subsequent fishing 
operations, we were not able to determine a number or mass of the fish 
present.
    Affected parties are reminded that the USACE may again raise the 
operating parameters of the fish barrier in response to ongoing tests 
regarding the effectiveness of the barrier on the Asian carp. In 
addition, when USACE activates barrier IIB, additional testing will be 
necessary to ensure the safety of vessels. If this occurs, it is 
possible that fewer vessels will be given permission to enter the RNA 
and safety zone until further safety testing and analysis can be 
completed and current timelines for a final rule will be extended.

Discussion of Rule

    This temporary interim rule amends 33 CFR 165.T09-1080, issued on 
January 6, 2010 (75 FR 759), which established a safety zone and RNA on 
the waters of the CSSC. The purpose of this rule is to change the area 
sizes of the safety zone and RNA, and to place additional restrictions 
on vessels that may transit the RNA. This rule amends

[[Page 36290]]

33 CFR 165.T09-1080(a)(1), which established the area of the safety 
zone, to read ``450 feet south of the Romeo Road Bridge'', instead of 
``958 feet south of the Romeo Road Bridge''. This rule amends Sec.  
165.T09-1080 (b)(1), which established the size of the RNA, to reduce 
the size of the RNA from mile markers 295.0-297.5 to mile markers 
295.5-297.2. This rule amends Sec.  165.T09-1080 (b)(2)(ii), which 
listed restrictions on vessels that may transit the RNA, by adding two 
more restrictions on vessels that may transit the RNA. Vessels must be 
greater than 20 feet to transit the RNA. Additionally, personal 
watercraft, motorized and non-motorized, of any kind (e.g. jet skis, 
wave runners, kayaks etc.) will not be permitted to transit the RNA.
    All other provisions of the safety zone and RNA remain unchanged.

Regulatory Analyses

    We developed this temporary interim 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 temporary interim 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.
    Because this regulated navigation area and safety zone 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, and that the revisions being made by this rule are minimal. What 
follows is the regulatory impact statement that published on January 6, 
2010, when this temporary interim rule was first established:
    This rule will affect commercial traffic transiting the electrical 
dispersal fish barrier system and surrounding waters. The USACE 
maintains data about the commercial vessels using the Lockport Lock and 
Dam, which provides access to the proposed RNA. According to USACE 
data, the commercial traffic through the Lockport Lock consisted of 147 
towing vessels and 13,411 barges during 2007. Of those, 96 towing 
vessels and 2,246 barges were handling red flag cargo (i.e., those 
carrying hazardous, flammable, or combustible material in bulk).
    Recreational vessels will also be affected under this rule. 
According to USACE data, recreational vessels made up 66 percent of the 
usage of the Lockport Lock and Dam in 2007. Operation and maintenance 
of the USACE fish barrier will continue to affect recreational vessels 
as they have in the past. The majority of these vessels will still be 
able to transit the RNA under this rule.
    The potential cost associated with this rule will include bow boat 
assistance for red flag vessels and the potential cost associated with 
possible delays or inability to transit the RNA for those vessels 
transporting non-potable water attained on one side of the barrier for 
discharge on the other.
    Operators have been using bow boat assistance, under prior 
temporary rules, to mitigate the risk posed by the electrical dispersal 
fish barrier system operated by USACE. Based on information from the 
Ninth Coast Guard District, several tow boat operators are already 
refraining from permitting the discharge of non-potable water attained 
on one side of the barrier to the other.
    We expect some provisions in this rule will not result in 
additional costs. These include loitering, mooring and PFD 
requirements. Similar to prior temporary rules, vessels are prohibited 
from mooring or loitering in the RNA and all personnel in the RNA on 
open decks are required to wear a Coast Guard approved Type I personal 
flotation device. Most commercial and recreational operators will have 
required flotation devices on board as a result of other requirements 
and common safe boating practices. Based on the past temporary rules, 
we observed no information and received no data to confirm there were 
additional costs as a result of these provisions.
    In addition, the 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 CSSC 
will be permitted to enter the regulated navigation area and safety 
zone under certain conditions. Those vessels that will not be permitted 
to pass through the barrier may be permitted, on a case by case basis, 
to pass via a dead ship tow by a commercial vessel that is able to 
transit.
    We expect the benefits of this rule will mitigate marine safety 
risks as a result of the operation and maintenance of the fish barriers 
by the USACE. This rule will allow commerce to continue through the 
waters adjacent to and over these barriers. This rule will also 
mitigate the possibility of an Asian Carp introduction into Lake 
Michigan, and the Great Lakes system, as a result of commerce through 
the CSSC.
    At this time, based on available information from past temporary 
rules, we anticipate that this rule will not be economically 
significant under Executive Order 12866 (i.e., have an annual effect on 
the economy of $100 million or more). The Coast Guard urges interested 
parties to submit comments that specifically address the economic 
impacts of this temporary interim rule. Comments can be made online by 
following the procedures outlined above in the ADDRESSES section.

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.

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).

[[Page 36291]]

Federalism

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

Unfunded Mandates Reform Act

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

Taking of Private Property

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

Civil Justice Reform

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

Protection of Children

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

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office 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 temporary 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), as well as paragraph 
(27) of the Instruction and neither an environmental assessment nor an 
environmental impact statement is required. This rule involves the 
establishing, disestablishing, or changing of regulated navigation 
areas and security or safety zones. This temporary rule will assist the 
aforementioned multi-agency effort to research and manage the possible 
impact of the Asian carp on the Great Lakes. 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 record 
keeping requirements, Security measures, Waterways.

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

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

    Authority:  33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 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.


0
2. In Sec.  165.T09-1080, revise paragraphs (a)(1) and (b)(1), and add 
paragraphs (b)(2)(ii)(J) and (b)(2)(ii)(K) to read as follows:


Sec.  165.T09-1080  Safety Zone and Regulated Navigation Area, Chicago 
Sanitary and Ship Canal, Romeoville, IL.

    (a) * * *
    (1) The following area is a temporary safety zone: All waters of 
the Chicago Sanitary and Ship Canal, Romeoville, IL located between 
mile marker 296.1 (approximately 450 feet south of the Romeo Road 
Bridge and mile marker 296.7 (aerial pipeline located approximately 
0.51 miles north east of Romeo Road Bridge).
* * * * *
    (b) * * *
    (1) The following is a regulated navigation area (RNA): All waters 
of the Chicago Sanitary and Ship Canal, Romeoville, IL located between 
mile marker 295.5 (approximately 3600 feet south of the Romeo Road 
Bridge) and mile marker 297.2 (approximately 0.5 miles north of the 
pipeline arch).
    (2) * * *
    (ii) * * *
    (J) Vessels must be greater than twenty feet in length.
    (K) Vessels must not be a personal watercraft of any kind (e.g. jet 
skis, wave runners, kayaks, etc.).
* * * * *

    Dated: June 15, 2010.
M. N. Parks,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2010-15398 Filed 6-24-10; 8:45 am]
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