[Federal Register Volume 76, Number 113 (Monday, June 13, 2011)]
[Rules and Regulations]
[Pages 34145-34147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14625]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0453]
RIN 1625-AA00


Safety Zone, Barrier Testing Operations, Chicago Sanitary and 
Ship Canal, Romeoville, IL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone 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. This safety zone is 
necessary to protect the waters, waterway users, and vessels from the 
hazards associated with U.S. Army Corps of Engineers (USACE) temporary 
simultaneous operation of dispersal barrier IIA and IIB.

DATES: This rule is effective on June 10, 2011. This rule will remain 
in effect until 5 p.m. on June 21, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-0453 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-0453 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 rule, contact or e-mail BM1 Adam Kraft, U.S. Coast Guard 
Sector Lake Michigan, at 414-747-7148 or [email protected]. 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) 
with respect to this rule because waiting for a notice and comment 
period to run would be impracticable and contrary to the public 
interest in that it would inhibit the Coast Guard's ability to protect 
the public from the hazards associated with the U.S. Army Corps of 
Engineers' simultaneous operation of electric barriers IIA and IIB.
    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. For the reasons discussed in the 
preceding paragraph, a 30-day notice period would be impractical and 
contrary to the public interest.

Background and Purpose

    In 2007, the Department of the Interior through the Fish and 
Wildlife Service listed the Asian Carp and the Silver Carp as Injurious 
Wildlife Species. Based upon testing conducted by the USACE, the Asian 
carp is presently migrating toward the Great Lakes through the CSSC and 
connected tributaries. Scientists are concerned that if these aquatic 
nuisance species reach the Great Lakes in sufficient numbers they might 
devastate the Great Lakes commercial and sport fishing industries.
    The Nonindigenous 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 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. Barrier IIA is currently 
operating at two volts per inch, 15 Hertz and 6.5ms. Construction on 
Barrier IIB has been completed. Operational and safety testing was 
conducted in February 2011 and is being analyzed. The completion

[[Page 34146]]

of Barrier IIB will allow for maintenance operations without the need 
for the use of other aquatic nuisance species countermeasures. As part 
of its ongoing operation of these electrical barriers, the USACE 
intends on simultaneously operating Barrier IIA and IIB, daily from 7 
a.m. to 11 a.m. and from 1 p.m. to 5 p.m. on June 10th, 11th, 13th, 
14th, 15th, 16th, 17th, 18th, 20th, and 21st, 2011.

Discussion of Rule

    This rule places a safety zone that will encompass all waters of 
the CSSC located between mile marker 296.1 (approximately 958 feet 
south of Romeo Road Bridge) and mile marker 296.7 (aerial pipeline 
located approximately 2,693 feet northeast of Romeo Road Bridge).
    The Coast Guard has deemed this safety zone necessary to protect 
the waterways, waterway users, and vessels from hazards associated with 
the USACE's temporary simultaneous operation of dispersal barrier IIA 
and IIB. This safety zone will be enforced daily from 7 a.m. to 11 a.m. 
and from 1 p.m. to 5 p.m. on June 10th, 11th, 13th, 14th, 15th, 16th, 
17th, 18th, 20th, and 21st, 2011.
    During the enforcement period, Entry into, transiting, mooring, 
laying-up or anchoring within the enforced area of this safety zone by 
any person or vessel is prohibited unless authorized by the Captain of 
the Port, Sector Lake Michigan, or his or her designated 
representative.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS). We conclude that this rule is not a significant 
regulatory action because we anticipate that it will have minimal 
impact on the economy, will not interfere with other agencies, will not 
adversely alter the budget of any grant or loan recipients, and will 
not raise any novel legal or policy issues.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule will have a significant economic impact on 
a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will 
not have a significant economic impact on a substantial number of small 
entities. This rule will affect the following entities, some of which 
might be small entities: the owners or operators of vessels intending 
to transit or anchor on a portion of the CSSC between the hours of 7 
a.m. and 11 a.m. and from 1 p.m. to 5 p.m. on June 10th, 11th, 13th, 
14th, 15th, 16th, 17th, 18th, 20th, and 21st, 2011.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities for the following reasons: This 
rule will only be enforced while unsafe conditions exist. In the event 
that this temporary safety zone affects shipping, commercial vessels 
may request permission from the Captain of The Port, Sector Lake 
Michigan, or his or her designated representative to transit through 
the safety zone. The Coast Guard will give notice to the public via a 
Broadcast to Mariners that the regulation is in effect.

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 could 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 concern 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.

[[Page 34147]]

Energy Effects

    We have analyzed this proposed 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 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction. This rule involves the establishment of a 
safety zone and is therefore categorically excluded under paragraph 
34(g) of the Instruction. A final environmental analysis check list and 
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.

    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. 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. Add Sec.  165.T09-0453 to read as follows:


Sec.  165.T09-0453  Safety Zone, Barrier Testing Operations, Chicago 
Sanitary and Ship Canal, Romeoville, IL.

    (a) Location. The safety zone will encompass all U.S. navigable 
waters of the Chicago Sanitary and Ship Canal from Mile Marker 296.1 to 
Mile Marker 296.7 [DATUM: NAD 83].
    (b) Effective and enforcement periods. This rule is effective on 
June 10, 2011 and will remain in effect until 5 p.m. on June 21, 2011. 
This rule will be enforced daily from 7 a.m. to 11 a.m. and from 1 p.m. 
to 5 p.m. on June 10, 11, 13, 14, 15, 16, 17, 18, 20, and 21.
    (3) 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 his or her designated 
representative.
    (ii) This safety zone is closed to all vessel traffic, except as 
may be permitted by the Captain of the Port, Sector Lake Michigan, or 
his or her designated representative.
    (iii) The ``designated 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 
his or her behalf. The designated 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 channel 16 radio, loudhailer, or by 
phone. The Captain of the Port, Sector Lake Michigan, or his or her 
designated representative may be contacted via VHF channel 16 radio or 
the Coast Guard Sector Lake Michigan Command Center at 414-747-7182.
    (iv) Vessel operators desiring to enter or operate within the 
safety zone shall contact the Captain of the Port, Sector Lake 
Michigan, or his or her designated representative to obtain permission 
to do so.
    (v) 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, Sector Lake Michigan, or his or her designated 
representative.

    Dated: June 3, 2011.
L. Barndt,
Captain, U.S. Coast Guard, Commander, U.S. Coast Guard Sector Lake 
Michigan.
[FR Doc. 2011-14625 Filed 6-9-11; 11:15 am]
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