[Federal Register Volume 76, Number 238 (Monday, December 12, 2011)]
[Rules and Regulations]
[Pages 77121-77125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31706]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-1108]
RIN 1625-AA11, 1624-AA00


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

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is establishing both a safety zone and a 
Regulated Navigation Area on the Chicago Sanitary and Ship Canal near 
Romeoville, IL. This final rule places navigational, environmental, and 
operational restrictions on all vessels transiting the navigable waters 
located adjacent to and over the U.S. Army Corps of Engineers' 
electrical dispersal fish barrier system.

DATES: This rule is effective in the CFR on December 12, 2011. This 
rule is effective with actual notice for purposes of enforcement at 
5:30 p.m. on December 1, 2011.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2011-1108 and are available online 
by going to http://www.regulations.gov, inserting USCG-2011-1108 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 rule, 
call

[[Page 77122]]

CDR Scott Anderson, U.S. Coast Guard, Ninth District Prevention 
Department, Cleveland, OH, at (216) 902-6049 or email him at 
[email protected]. If you have questions on viewing or 
submitting material to the docket, call Renee V. Wright, Program 
Manager, Docket Operations, telephone (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    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. A 30 day effective period is 
unnecessary in this case because the safety zone and regulated 
navigation area (RNA) established by this rule have been in effect and 
enforced on a temporary basis for the last twelve months. Also, a 30 
day effective period would be against the public interest. Delaying the 
effective date of this final rule would delay its protective effects on 
the public against the dangers presented by the electrical dispersal 
barrier. Additionally, postponing the effective date of this final rule 
would delay its protective effects against the potential transport 
north of the barrier of carp eggs, gametes, or juvenile fish and thus, 
would be against the public's environmental interests.

Basis and Purpose

    In response to the threat of Asian carp reaching the Great Lakes 
and devastating the Great Lakes commercial and sport fishing 
industries, the U.S. Army Corps of Engineers (USACE) began in 2002 the 
operation of a series of electrical barriers in the Chicago Sanitary 
and Ship Canal (CSSC). These barriers are located approximately 30 
miles from Lake Michigan and create an electric field in the water by 
pulsing low voltage DC current through steel cables secured to the 
bottom of the canal. Currently, three electrical barriers are in 
operation. These barriers are meant to prevent and reduce the dispersal 
of Asian carp in the CSSC.
    The Coast Guard's Ninth District Commander has determined that the 
electric current radiated from the electric barriers poses certain 
safety risks to commercial vessels, recreational boaters, and people on 
or in portions of the CSSC in the vicinity of the barriers. 
Consequently, the Coast Guard's Ninth District Commander has concluded 
that an RNA is necessary to mitigate such risks.
    In addition to safety concerns about electric current in the water, 
concerns have also been raised about the potential transport of carp 
eggs, gametes, and juvenile fish in bilge, ballast, or other non-
potable water from south of the barriers to waters north of the 
barriers. To address these concerns, the Coast Guard's Ninth District 
Commander has determined that a safety zone is necessary to mitigate 
the threat of such transportation.
    For a fuller discussion on the history of the electrical dispersal 
barriers and the potential transportation of eggs, gametes, and 
juvenile fish across the barriers see 70 FR 76694, 75 FR 754, and 75 FR 
75145, which were published on December 28, 2005, January 6, 2010, and 
December 2, 2010 respectively.

Background

    To address the aforesaid safety risks, the Coast Guard's Ninth 
District Commander first established a permanent RNA on December 28, 
2005 (70 FR 76694). That RNA is located at 33 CFR 165.923. Because the 
safety risks associated with the electrified water evolved as 
additional barriers came online and because awareness increased about 
the potential transportation of carp eggs, gametes, and juvenile fish, 
the Coast Guard's Ninth District Commander twice elected to temporarily 
put in place a new RNA and a new safety zone. The first temporary RNA 
and safety zone were established on January 6, 2010 (75 FR 754). The 
second temporary RNA and safety zone were established on December 2, 
2010 (75 FR 75145). In each instance, the Coast Guard's Ninth District 
Commander suspended the permanent RNA created on December 28, 2005.
    The electric barriers are still in operation, and there are no 
indications of that their use will be terminated in the foreseeable 
future. Also, the potential transportation of carp eggs, gametes, and 
juvenile fish via bilge, ballast, or other non-potable water has not 
been disproved. For these reasons, the Coast Guard's Ninth District 
Commander has decided to revise 33 CFR 165.923 and thus, make effective 
and enforceable at 5:30 p.m. on December 1, 2011 the requirements that 
have been in place since December 2, 2010 via the aforesaid temporary 
interim rule (75 FR 75145).

Discussion of Rule

    As stated above, the Coast Guard's Ninth District Commander has 
decided to revise 33 CFR 165.923 via this final rule, permanently 
putting in place an RNA on all waters located adjacent to, and over, 
the electrical dispersal barriers on the CSSC between mile marker 295.5 
and mile marker 297.2. An RNA of this size is necessary to account for 
situations where a vessel inside the barrier could come into contact 
with a vessel outside the barrier possibly causing sparking greater 
than 1,200 feet beyond the Romeo Road Bridge or the aerial pipeline 
arch.
    The RNA establishes vessel size, type, and operating requirements 
to include: (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 downbound commercial 
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 RNA; (4) vessels 
engaged in commercial service, as defined in 46 U.S.C. 2101(5), may not 
pass (meet or overtake) in the RNA and must make a SECURITE call when 
approaching the RNA to announce intentions and work out passing 
arrangements on either side; (5) commercial tows transiting the RNA 
must only 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 RNA; (7) vessels may enter the RNA for the sole 
purpose of transiting to the other side and must maintain headway 
throughout the transit; (8) 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 RNA; (9) all personnel on vessels transiting the RNA should remain 
inside the cabin, or as inboard as practicable. If personnel must be on 
open decks, they must wear a Coast Guard approved personal flotation 
device; (10) vessels may not moor or lay up on the right or left 
descending banks of the RNA; and, (11) towboats may not make or break 
tows if any portion of the towboat or tow is located in the RNA.
    The rule also places a safety zone over a smaller portion of the 
same waterway. The safety zone will consist of all waters of the CSSC 
between mile marker 296.1 and mile marker 296.7. Vessels are prohibited 
from transiting the safety zone with non-potable water on board in any 
space except for water on board that will not be discharged on the 
other side of the safety zone. Vessels must notify and obtain 
permission from the Captain of the Port Sector Lake Michigan prior to 
transiting the safety zone if they intend to discharge any non-potable 
water attained on one-side of the safety zone on the other side of the 
zone. This includes water in void spaces being unintentionally 
introduced through cracks or other damage to the

[[Page 77123]]

hull. The Captain of the Port Sector Lake Michigan maintains a 
telephone line that is manned 24 hours a day, seven days a week at 414-
747-7182.
    The requirements established in this rule are necessary for safe 
navigation of the RNA and to ensure the safety of vessels and their 
personnel as well as the public in general. The requirements are also 
necessary to protect against the harms presented by a potential 
invasion of Asian carp in Lake Michigan. Deviation from this final rule 
is prohibited unless specifically authorized by the Coast Guard's Ninth 
District Commander or his or her designated representatives. For the 
life of this RNA, the Coast Guard's Ninth District Commander designates 
as his or her representatives the Captain of the Port, Sector Lake 
Michigan, and the Commanding Officer, Marine Safety Unit Chicago.
    The safety zone and RNA will be enforced at all times. If, however, 
enforcement of the safety zone or RNA is at any time suspended, the 
Coast Guard's Ninth District Commander or his or her designated 
representatives will cause notice of the suspension to be made by all 
appropriate means to effect the widest publicity among the affected 
segments of the public.

Regulatory Analyses

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

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, and does not 
require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order.
    This 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 alternative transportation methods for 
vessels under 20 feet in length, bow boat assistance for red flag 
vessels and the potential costs associated with possible delays or 
inability to transit the safety zone for those vessels transporting 
non-potable water attained on one side of the barrier for discharge on 
the other.
    We expect some provisions in this rule will not result in 
additional costs. These include the no loitering, the no mooring, and 
the PFD requirements. Similar to prior temporary interim rules, under 
this final rule 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 interim rules, we observed no 
information and received no data to confirm there were additional costs 
as a result of these provisions.
    In addition, test results at the current operating parameters 
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 
interim 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).

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.
    A final RFA analysis is not required under 5 U.S.C. 604(a) as this 
final rule was determined to be exempt from notice and comment 
rulemaking under 5 U.S.C. 553(b)(B) (see 75 FR 754). Nonetheless, the 
Coast Guard certifies under 5 U.S.C. 605(b), that this 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.

[[Page 77124]]

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 cause 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 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, paragraphs (27) and (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 regulated navigation 
area and safety zone and thus, paragraphs (27) and (34)(g) of the 
Instruction apply. An environmental analysis checklist and a 
categorical exclusion determination are available in the docket where 
indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and 
recordkeeping requirements, Security measures, 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. Revise Sec.  165.923 to read as follows:


Sec.  165.923  Safety Zone and Regulated Navigation Area, Chicago 
Sanitary and Ship Canal, Romeoville, IL.

    (a) Safety Zone. (1) The following area is a safety zone: All 
waters of the Chicago Sanitary and Ship Canal located between mile 
marker 296.1 and mile marker 296.7.
    (2) Regulations. (i) All vessels are prohibited from transiting the 
safety zone with any non-potable water on board if they intend to 
release that water in any form within, or on the other side of the 
safety zone. Non-potable water includes, but is not limited to, any 
water taken on board to control or maintain trim, draft, stability, or 
stresses of the vessel. Likewise, it includes any water taken on board 
due to free communication between the hull of the vessel and exterior 
water. Potable water is water treated and stored aboard the vessel that 
is suitable for human consumption.
    (ii) Vessels with non-potable water onboard are permitted to 
transit the safety zone if they have taken steps to prevent the 
release, in any form, of that water in or on the other side of the 
safety zone. Alternatively, vessels with non-potable water onboard are 
permitted to transit the safety zone if they have plans to dispose of 
the water in a biologically sound manner.
    (iii) Vessels with non-potable water aboard that intend to 
discharge on the other side of the zone must contact the Coast Guard's 
Ninth District Commander or his or her designated representatives prior 
to transit and obtain permission to transit and discharge. Examples of 
discharges that may be approved include plans to dispose of the water 
in a biologically sound manner or demonstrate through testing that the 
non-potable water does not contain potential live Silver or Asian carp, 
viable eggs, or gametes.
    (iv) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into, transiting, or anchoring within this safety zone 
by vessels with non-potable water on board is prohibited unless 
authorized by the Coast Guard's Ninth District Commander, his or her

[[Page 77125]]

designated representatives, or an on-scene representative.
    (v) The Captain of the Port, Sector Lake Michigan, may further 
designate an ``on-scene'' representative. The Captain of the Port, 
Sector Lake Michigan, or the on-scene representative may be contacted 
via VHF-FM radio Channel 16 or through the Coast Guard Sector Lake 
Michigan Command Center at (414) 747-7182.
    (b) Regulated Navigation Area. (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 and mile marker 
297.2.
    (2) Regulations.
    (i) The general regulations contained in 33 CFR 165.13 apply.
    (ii) Vessels that comply with the following restrictions are 
permitted to transit the RNA:
    (A) All up-bound and down-bound barge 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 RNA.
    (B) Vessels engaged in commercial service, as defined in 46 U.S.C. 
2101(5), may not pass (meet or overtake) in the RNA and must make a 
SECURITE call when approaching the RNA to announce intentions and work 
out passing arrangements.
    (C) Commercial tows transiting the RNA must be made up with only 
wire rope to ensure electrical connectivity between all segments of the 
tow.
    (D) All vessels are prohibited from loitering in the RNA.
    (E) Vessels may enter the RNA 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 RNA.
    (F) Except for law enforcement and emergency response personnel, 
all personnel on vessels transiting the RNA should remain inside the 
cabin, or as inboard as practicable. If personnel must be on open 
decks, they must wear a Coast Guard approved personal flotation device.
    (G) Vessels may not moor or lay up on the right or left descending 
banks of the RNA.
    (H) Towboats may not make or break tows if any portion of the 
towboat or tow is located in the RNA.
    (I) Persons on board any vessel transiting this RNA in accordance 
with this rule or otherwise are advised they do so at their own risk.
    (c) 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 RNA. 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 representative means the Captain of the Port Lake 
Michigan and Commanding Officer, Marine Safety Unit Chicago.
    On-scene representative means 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 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 or loudhailer.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable or being used, as a means of 
transportation on water. This definition includes, but is not limited 
to, barges.
    (d) Compliance. All persons and vessels must comply with this 
section and any additional instructions or orders of the Coast Guard's 
Ninth District Commander or his or her designated representatives. Any 
person on board any vessel transiting this RNA in accordance with this 
rule or otherwise does so at his or her own risk.
    (e) Waiver. For any vessel, the Coast Guard's Ninth Coast Commander 
or his or her 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.

    Dated: December 1, 2011.
M.N. Parks,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2011-31706 Filed 12-9-11; 8:45 am]
BILLING CODE 9110-04-P