[Federal Register Volume 75, Number 231 (Thursday, December 2, 2010)]
[Rules and Regulations]
[Pages 75145-75151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30289]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 75, No. 231 / Thursday, December 2, 2010 / 
Rules and Regulations

[[Page 75145]]



DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2010-1054]
RIN 1625-AA11, 1625-AA00


Regulated Navigation Area, Chicago Sanitary and Ship Canal, 
Romeoville, IL; Safety Zone, 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 establishing both a safety zone and a 
Regulated Navigation Area (RNA) on the Chicago Sanitary and Ship Canal 
(CSSC) near Romeoville, IL. This temporary interim 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' (USACE) electrical dispersal fish barrier 
system.

DATES: Effective Date: In this rule, Sec.  165.923 is suspended, and a 
new temporary section, Sec.  165.T09-1054, is added in the CFR 
effective 5 p.m. on December 1, 2010 until 5 p.m. on December 1, 2011. 
This rule is effective with actual notice for purposes of enforcement 
beginning at 5 p.m. on December 1, 2010 until 5 p.m. on December 1, 
2011.
    Comment Period: Comments and related material must reach the Docket 
Management Facility on or before January 31, 2011.

ADDRESSES: You may submit comments identified by docket number USCG-
2010-1054 using any one of the following methods:
    (1) Federal eRulemaking Portal: http:[sol][sol]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 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: 

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:[sol][sol]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-2010-1054), 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:[sol][sol]www.regulations.gov, select the Advanced Docket Search 
option on the right side of the screen, insert ``USCG-2010-1054'' in 
the Docket ID box, press Enter, and then click on the balloon shape in 
the Actions column. If you submit your comments by mail or hand 
delivery, submit them in an unbound format, no larger than 8\1/2\ by 11 
inches, suitable for copying and electronic filing. If you submit them 
by mail and would like to know that they reached the Facility, please 
enclose a stamped, self-addressed postcard or envelope. We will 
consider all comments and material received during the comment period 
and may change 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:[sol][sol]www.regulations.gov, select the Advanced Docket Search 
option on the right side of the screen, insert USCG-2010-1054 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 on or before February 1, 2011 using one of the four 
methods specified under ADDRESSES. Please 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

    This temporary interim rule essentially creates an extension of a 
prior temporary interim rule with

[[Page 75146]]

request for comments published in the Federal Register on January 6, 
2010 (75 FR 754). Comments were received under that temporary rule and 
have been considered and addressed in this rulemaking. The comments 
that were received and the Coast Guard's response are addressed below 
in the Discussion of Rule section. The Coast Guard also renews its 
requests for comments that will be considered when determining the 
final rule.
    For the reasons discussed below, 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 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. Therefore, 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).

RNA Good Cause Discussion

    In 2002, the USACE energized a demonstration electrical dispersal 
barrier located in the CSSC. 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 CSSC, than Barrier I. The USACE is currently in the process of 
constructing and testing ``Barrier IIB'' which will operate alongside 
Barrier IIA. Barrier IIB will also be capable of generating the four-
volts per inch field strength.
    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.
    In the past, the Coast Guard advised the USACE that it has no 
objection to the activation of Barrier IIA and Barrier I at a maximum 
strength of one-volt per inch. Testing on commercial vessels transiting 
the canal over the fish barrier was conducted at one volt per inch 
indicating that although the barriers create risks to people and 
vessels, those risks could be mitigated by following certain 
procedures. These mitigation procedures for the barrier operating at 
one volt per inch were implemented in a temporary interim rule 
establishing an RNA and a safety zone that was published in the Federal 
Register on February 9, 2009 (74 FR 6352), as well as an NPRM published 
in the Federal Register on May 26, 2009 (74 FR 24722).
    However, both of these rulemakings reflected the prior operating 
parameters of the dispersal barriers and contemplated further testing 
of the effects of higher voltages on commercial and recreational 
vessels as well as people. After Barrier IIA was energized, the USACE 
completed safety testing in consultation with the U.S. Coast Guard in 
August of 2009, to test various configurations of commercial tugs and 
barges as well as recreational vessels with non-conductive hulls 
passing through the barriers at increased voltage and operating 
parameters. Although testing and analysis of the risks to persons and 
vessels have begun, such efforts are ongoing.
    Once Barrier IIB is energized, additional testing must be 
completed. In addition, the USACE is still in the process of 
determining what the optimal operational configurations of the barriers 
will be. Until all the barriers are operational, the strength and 
configuration of the barrier are finalized by the USACE and all 
necessary safety and operational testing is completed, the Coast Guard 
is unable to predict what waterway safety restrictions will be 
necessary in the vicinity of the electric dispersal barrier. As such, 
the Coast Guard is unable to give the public advanced notice of the 
final restrictions that will be necessary on the CSSC, but must take 
this immediate, interim action in order to prevent injury to people as 
well as damage to vessels and the waterway. Given the risks involved as 
well as the uncertainty of the situation, it is contrary to the public 
interest to delay the effective date of the RNA included in this rule.

Safety Zone Good Cause Discussion

    In November 2009, the USACE made an announcement that it had 
discovered environmental deoxyribonucleic acid (e-dna) from Asian carp 
north of the fish barrier, indicating the potential that an unknown 
amount of Asian carp may be living in the waterways north of the fish 
barrier in the Cal-Sag Channel but south of the O'Brien Locks. Under 50 
CFR Part 16, Asian carp are listed as an injurious species of fish and 
as such are illegal for interstate transportation. A permit is required 
to transport all viable eggs, gametes, as well as live Silver or Asian 
carp. Historically, vessels have taken on water south of the barrier 
and transported it across the barrier as bilge, ballast, or other non-
potable water. This practice is considered a possible bypass vector for 
transporting Asian carp eggs or juvenile fish from south of the barrier 
to north of the barrier. Although it not believed that Asian carp have 
been transported into the Great Lakes via this entry method, immediate 
action is needed to close down this possible bypass vector. In response 
to public comments on the previous interim rule, there is no indication 
that any particular type of vessel has transported Asian carp across 
the barrier or that any type of vessel is a higher risk than others for 
transporting Asian carp. For this reason, delaying the effective date 
for the safety zone included in this temporary interim rule would be 
contrary to the public interest.

Background and Purpose

    The Nonindigenous Aquatic Nuisance Prevention and Control Act of 
1990, as amended by the National Invasive Species Act of 1996, 
authorized the 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

[[Page 75147]]

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. 
Construction of a third barrier (Barrier IIB) has commenced and is 
ongoing. Barrier IIB will augment the capabilities of Barriers I and 
IIA. Until all three barriers are functional at the same time and 
testing is completed, the USACE is unable to determine what the final 
operational configurations of the dispersal barrier will be. Until that 
time, the necessary long-term safety and environmental restrictions 
required for this portion of the CSSC cannot be determined.
    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.
    In addition to the USACE's electric dispersal barrier, rotenone, a 
fish toxicant, has been applied to approximately six miles of the CSSC 
while barrier maintenance was conducted to ensure no fish were able to 
transit the barrier. As a result, evidence indicating the presence of 
Asian carp, including one Silver carp south of the barrier, was found 
in the general vicinity of the barrier. Although research efforts are 
ongoing, researchers have not been able to determine a number or mass 
of the Asian carp present either north or immediately south of the 
barrier.
    Affected parties are reminded that the USACE may, at any time, 
permanently 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 the USACE permanently raises the voltage strength of the Barrier or 
otherwise alters Barrier operations to create unacceptable risks to 
waterway users, 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. Interested parties are urged to 
provide comment on how a permanent closure of the CSSC at the affected 
location would impact them.

Discussion of Rule

    This temporary interim rule replaces 33 CFR 165.T09-1004, the last 
temporary rule published to address risks associated with Barrier IIA 
and the application of rotenone to the CSSC. This rule also suspends 33 
CFR 165.923 until 5 p.m. on December 1, 2011. This rule places an RNA 
on all waters located adjacent to, and over, the electrical dispersal 
barriers on the CSSC between mile marker 295.5 (approximately 3600 feet 
south of the Romeo Road Bridge) and mile marker 297.2 (approximately 
2,640 feet north of the aerial pipeline arch). This RNA was reduced in 
size in response to public comments on a previous temporary interim 
rule. Public comments suggested that the RNA extend no further than 
1,200 feet north and south of the aerial pipeline arch and the Romeo 
Road Bridge respectively. The Coast Guard finds that the current size 
of the RNA 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 rule also places a safety zone over a smaller portion of these 
same waters located between mile marker 296.1 (approximately 958 feet 
south of the Romeo Road Bridge) and mile marker 296.7 (aerial pipeline 
arch located approximately 2,693 feet north east of Romeo Road Bridge). 
The RNA and safety zone will be enforced at all times until the USACE 
suspends operation of the electrified fish barrier and the Asian carp 
are no longer deemed an environmental threat to the Great Lakes. This 
temporary rule is to remain in effect until December 1, 2011 in order 
to give sufficient time for the USACE to complete construction and 
testing of Barrier IIB and determine the long-term operational 
configurations associated with the electric dispersal barrier.
    The RNA places requirements on all vessels 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 down-bound 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

[[Page 75148]]

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.
    Public comments to the previous temporary interim rule suggested 
that both recreational and commercial vessel traffic (1) be prohibited 
from loitering, mooring, or laying up on the left or right descending 
banks; (2) provide radio notification before entering the RNA; and (3) 
move through the RNA with all due speed. The Coast Guard believes that 
suggestions (1) and (3) are already covered by the terms of this RNA in 
that no vessels may loiter or moor within the RNA. Secondly, all 
vessels must enter the RNA for the sole purpose of transiting to the 
other side and must maintain headway. Given the various vessel designs 
and engine configurations, requiring a certain speed is not prudent or 
necessary.
    With regard to the requirement to have recreational vessels provide 
radio notification prior to entering the RNA, many of the recreational 
vessels that typically pass through the RNA are not required to carry 
marine band VHF radios. As such, requiring radio call outs is beyond 
the scope of this rule. Furthermore, the majority of recreational 
vessels that typically pass through the RNA are not comparable in size 
or maneuverability to the commercial vessels that typically pass 
through the RNA. As such, the Coast Guard finds that the proposed 
requirement is not necessary to prevent injury to persons, property, or 
the waterway. Furthermore, there has been no requirement for 
recreational vessels to make radio call outs since 2002 and there have 
been no reported casualties or incidents resulting from recreational 
vessels not calling out.
    This temporary final rule places additional restrictions on all 
vessels transiting a safety zone that encompasses a smaller portion of 
the CSSC. The safety zone consists of all the waters of the CSSC 
located between 270 feet south of the Romeo Road Bridge (mile marker 
296.1) to the south side of the aerial pipeline (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 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.
    Public comments on this portion of the rule requested that this 
rule exempt ``water on board from a commercial or municipal source 
(which ultimately could be discharged)'' because it is inconsistent 
with Title 33 CFR Part 151. The Coast Guard declines to include such an 
exemption. First, the prohibitions in this rule are consistent with 33 
CFR Part 151 because, under that Part, water from a commercial or 
municipal source held for the purpose to control or maintain trim, 
draught, stability, or stresses of the vessel, regardless of how it is 
carried, will still be considered ``ballast water'' as contemplated by 
Part 151. Therefore, Part 151 does not differentiate ballast water that 
is collected from commercial or municipal sources.
    Secondly, if vessel operators intend on transiting the zone with 
the intent of discharging non-potable water that comes from a 
commercial or municipal source north of the barrier, those vessels are 
able to request permission to demonstrate to the District Commander or 
his designated representative that such discharge would be biologically 
sound on a case-by-case basis.
    Public comments also requested that inadvertent leakage not be held 
as a violation of this rule because such a provision would be 
inconsistent with the Coast Guard's ballast water regulation. Again, 
the Coast Guard finds that the prohibitions against the discharge of 
non-potable water in this rule are consistent with the Coast Guard's 
ballast water regulations. Title 33 CFR Part 151 requires vessels to 
retain ballast water on board or use an environmentally sound method of 
ballast water management approved by the Commandant. The Coast Guard's 
interpretation of retaining ballast water on board does not allow for 
inadvertent leakage. Therefore, there is no inconsistency between the 
regulations. Furthermore, for those vessels that cannot avoid 
inadvertent leakage of non-potable water, they may be permitted to pass 
the safety zone if they can demonstrate through testing that the water 
does not contain potential Silver or Asian carp or viable eggs or 
gametes from these carp.
    These restrictions are necessary for safe navigation of the RNA and 
to ensure the safety of vessels and their personnel as well as the 
public's safety due to the electrical discharges noted during safety 
tests conducted by the USACE. They are also necessary to protect from 
the harms presented by a potential invasion of Asian carp in Lake 
Michigan. Deviation from this temporary final rule is prohibited unless 
specifically authorized by the Commander, Ninth Coast Guard District or 
his designated representatives. The Commander, Ninth Coast Guard 
District designates Captain of the Port Sector Lake Michigan and 
Commanding Officer, Marine Safety Unit Chicago, as his designated 
representatives for the purposes of the RNA.
    If, for any reason, the safety zone or RNA is at any time 
suspended, the Commander, Ninth Coast Guard District or the Captain of 
the Port Lake Michigan will cause notice of the enforcement of the 
safety zone and/or RNA to be made by all appropriate means to effect 
the widest publicity among the affected segments of the public.

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.
    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

[[Page 75149]]

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 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. In response to public comments 
from the last temporary interim rule, the Coast Guard does not expect 
the USACE to resume funding of the bow boats. As such, interested 
parties are encouraged to comment on how this provision will impact 
them assuming there will be no Federal funding of bow boats. 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).

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

[[Page 75150]]

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 
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; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


Sec.  165.923  [Suspended]

0
2. Suspend Sec.  165.923 from 5 p.m. on December 1, 2010 until 5 p.m. 
on December 1, 2011.


0
3. Add new temporary Sec.  165.T09-1054 from 5 p.m. on December 1, 2010 
until 5 p.m. on December 1, 2011 as follows:


Sec.  165.T09-1054  Safety Zone and Regulated Navigation Area, Chicago 
Sanitary and Ship Canal, Romeoville, IL.

    (a) Safety Zone.
    (1) The following area is a temporary safety zone: All waters of 
the CSSC located between mile marker 296.1 (approximately 958 feet 
south of the Romeo Road Bridge) and mile marker 296.7 (aerial pipeline 
arch located approximately 2,693 feet north east of Romeo Road Bridge).
    (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, 
or 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 
of that water in any form, in or on the other side of, the safety zone, 
or alternatively 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 COTP, her 
designated representative or her on-scene representative and obtain 
permission to transit and discharge prior to transit. Examples of 
discharges that may be approved by the COTP 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, or viable eggs or, gametes from these carp.
    (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 Captain of the Port Lake Michigan, her designated 
representative, or her on-scene representative.
    (v) 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 Lake Michigan to act on her 
behalf. The on-scene representative of the Captain of the Port 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. The Captain of the Port Lake Michigan 
or her on-scene representative may also 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 (approximately 
3,600 feet south of the Romeo Road Bridge) and mile marker 297.2 
(approximately 2,640 feet north of the aerial pipeline arch).
    (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.

[[Page 75151]]

    (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.
    (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.).
    (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.
    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) Enforcement Period. The regulated navigation area and safety 
zone will be enforced from 5 p.m. on December 1, 2010, until 5 p.m. on 
December 1, 2011. This regulated navigation area and safety zone are 
enforceable with actual notice by Coast Guard personnel beginning 5 
p.m. on December 1, 2010, until 5 p.m. on December 1, 2011.
    (e) Compliance. All persons and vessels must comply with this 
section and any additional instructions or orders of the Ninth Coast 
Guard District Commander, or his designated representatives. Any person 
on board any vessel transiting this RNA in accordance with this rule or 
otherwise does so at their own risk.
    (f) Waiver. For any vessel, the Ninth Coast Guard District 
Commander, or his designated representatives, may waive any of the 
requirements of this section, upon finding that operational conditions 
or other circumstances are such that application of this section is 
unnecessary or impractical for the purposes of vessel and mariner 
safety.

    Dated: November 22, 2010.
M.N. Parks,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2010-30289 Filed 12-1-10; 8:45 am]
BILLING CODE 9110-04-P