Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Rules and Regulations 43055 

DATES: This deviation is effective from 

7 a.m. on October 19, 2009, to 5 p.m. on 

October 30, 2009. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2009– 

0537 and are available online by going 

to http://www.regulations.gov, selecting 

the Advanced Docket Search option on 

the right side of the screen, inserting 

USCG–2009–0537 in the Docket ID box, 

pressing Enter, and then clicking on the 

item in the Docket ID column. They are 

also available for inspections 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 or 

e-mail Roger K. Wiebusch, Bridge 

Administrator, Coast Guard; (314) 269– 

2378, Roger.K.Wiebusch@uscg.mil. If 

you have questions on viewing the 

docket, call Renee V. Wright, Program 

Manager, Docket Operations, telephone 

202–366–9826. 

SUPPLEMENTARY INFORMATION: The 

Louisiana Department of Transportation 

and Development requested a temporary 

deviation for the LA 15 Highway 

Drawbridge, across the Red River 

Waterway, Mile 1.0, near Torras, 

Louisiana, to remain in the closed-tonavigation position for a two-week 

period to facilitate critical maintenance. 

The LA 15 Highway Drawbridge 

currently operates in accordance with 

33 CFR 117.5, which states the general 

requirement that drawbridges shall open 

promptly and fully for the passage of 

vessels when a request to open is given 

in accordance with the subpart. In order 

to facilitate the needed bridge work, the 

drawbridge must be kept in the closedto-navigation position. This deviation 

allows the bridge to remain in the 

closed-to-navigation position and is 

effective from 7 a.m., October 19, 2009, 

to 5 p.m., October 30, 2009. 

Navigation on the waterway consists 

primarily of commercial tows and 

recreational watercraft. Access from the 

Lower Mississippi River to the 

Atchafalaya River, Red River Waterway, 

and the Ouachita-Black Waterway is 

reached by passing under the subject 

bridge. Navigation will not be 

significantly impacted due to the 

scheduled closure of the Lower Old 

River Lock, at the same river mile as the 

subject bridge, for approximately 30 

days commencing on or about October 

15, 2009. The scheduled lock closure 

will preclude any requests for a bridge 

drawspan opening. 

The LA 15 Highway Drawbridge 

navigation span has a vertical clearance 

of 74.0 feet above zero gauge at the 

bridge in the closed-to-navigation 

position. Performing maintenance on 

the bridge, when the number of vessels 

likely to be impacted is minimal, is 

preferred to bridge closure requirements 

during other times when the lock is 

operational. This temporary change to 

the drawbridge’s operation has been 

coordinated with the commercial 

waterway operators and the Army Corps 

of Engineers. 

To get to Baton Rouge, Louisiana by 

an alternate route from the Red River 

Waterway, users may transit down the 

Atchafalaya River and up the Port Allen 

Route, adding approximately two days 

to the transit. For vessels going further 

north or south of Baton Rouge, 

additional time would be spent on the 

transit. 

This temporary deviation has been 

coordinated with waterway users. No 

objections were received. 

Dated: August 7, 2009. 

Roger K. Wiebusch, 

Bridge Administrator, Eighth Coast Guard 

District (dwb). 

[FR Doc. E9–20514 Filed 8–25–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0767] 

RIN 1625–AA11 

Safety Zone and Regulated Navigation 

Area, Chicago Sanitary and Ship 

Canal, Romeoville, IL 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a safety zone and regulated 

navigation area on the Chicago Sanitary 

and Ship Canal near Romeoville, IL. 

This temporary final rule places 

navigational 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: This temporary final rule is 

effective from 8 a.m. on August 17, 

2009, until 5 p.m. on August 25, 2009. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket USCG–2009– 

0767 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2009–0767 in the ‘‘Keyword’’ 

box, and then clicking ‘‘Search.’’ They 

are also available for inspection or 

copying at the Docket Management 

Facility (M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this temporary 

final rule, call CDR Tim Cummins, 

Deputy Prevention Division, Ninth 

Coast Guard District, telephone 216– 

902–6045. If you have questions on 

viewing the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

The Coast Guard is issuing this 

temporary final rule without prior 

notice and opportunity to comment 

pursuant to authority under section 4(a) 

of the Administrative Procedure Act 

(APA) (5 U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because the 

U.S. Army Corps of Engineers (USACE) 

made the decision, without time for a 

proper notice period, to permanently 

increase the voltage of the fish barrier to 

two-volts per inch in response to data 

which indicates that Asian carp are 

closer to the Great Lakes waterway 

system than originally thought. The 

electric current in the water created by 

the electrical dispersal barriers coupled 

with the uncertainty of the effects of the 

increased voltage poses a safety risk to 

commercial vessels and recreational 

boaters who transit the area. Therefore, 

it would be against the public interest 

to delay the issuing of this rule. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register because of the safety risk to 

commercial vessels and recreational 

boaters who transit the area. The 

following discussion and the 

Background and Purpose section below 

provide additional support of the Coast 

Guard’s determination that good cause 

exists for not publishing a NPRM and 

mstockstill on DSKH9S0YB1PROD with RULES

43056 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Rules and Regulations 

for making this rule effective less than 

30 days after publication. 

In 2002, the USACE energized a 

demonstration electrical dispersal 

barrier located in the Chicago Sanitary 

and Ship Canal. The demonstration 

barrier, commonly referred to as 

‘‘Barrier I,’’ generates a low-voltage 

electric field (one-volt per inch) across 

the canal, which connects the Illinois 

River to Lake Michigan. Barrier I was 

built to block the passage of aquatic 

nuisance species, such as Asian carp, 

and prevent them from moving between 

the Mississippi River basin and Great 

Lakes via the canal. In 2006, the USACE 

completed construction of a new barrier, 

‘‘Barrier IIA.’’ Because of its design, 

Barrier IIA can generate a more 

powerful electric field (up to four-volts 

per inch), over a larger area within the 

Chicago Sanitary and Ship Canal, than 

Barrier I. Testing was conducted by the 

USACE which indicated that two-volts 

per inch is the optimal voltage to deter 

aquatic nuisance species. The USACE’s 

original plan was to perform testing on 

the effects of the increased voltage on 

vessels passing through the fish barrier 

prior to permanently increasing the 

voltage. However, after receiving data 

that the Asian carp were closer to the 

Great Lakes than expected, the decision 

was made to immediately energize the 

barrier to two-volts per inch without 

prior testing. 

A comprehensive, independent 

analysis of Barrier IIA, conducted in 

2008 by the USACE at the one-volt per 

inch level, found a serious risk of injury 

or death to persons immersed in the 

water located adjacent to and over the 

barrier. Additionally, sparking between 

barges transiting the barrier (a risk to 

flammable cargoes) occurred at the onevolt per inch level. The Coast Guard and 

USACE developed regulations and 

safety guidelines, with stakeholder 

input, which addressed the risks and 

hazards associated with operating the 

barriers at the one-volt per inch level. 

These regulations were published in 33 

CFR 165.923, 70 FR 76692 (Dec 28, 

2005) and in a series of temporary final 

rules: 71 FR 4488 (Jan 27, 2006); 71 FR 

19648 (Apr 17, 2006); 73 FR 33337 (Jun 

12, 2008); 73 FR 37810 (Jul 2, 2008); 73 

FR 45875 (Aug 7, 2008); 73 FR 63633 

(Oct 27, 2008); 74 FR 6352 (Feb 9, 2009); 

and 74 FR 24722 (May 26, 2009). 

The USACE recently notified the 

Coast Guard that it plans to immediately 

increase the voltage of Barrier IIA to 

two-volts per inch on a full-time basis 

starting August 17, 2009. Both Barrier 

IIA and Barrier I will operate at the 

same time; hence, Barrier I will provide 

a redundant back up to Barrier IIA. 

In the past, the Coast Guard has 

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 procedures were 

implemented in a temporary interim 

rule establishing a regulated navigation 

area and safety zone that was published 

in the Federal Register on February 9, 

2009 (74 FR 6352) as well as a notice of 

proposed rulemaking published in the 

Federal Register on May 26, 2009 (74 

FR 24722). 

However, both of these rulemakings 

contemplated further testing of the 

effects of higher voltages on commercial 

and recreational vessels as well as 

people. Because no tests have been 

conducted at voltages higher than onevolt per inch, the Coast Guard will 

implement this safety zone until such 

tests are conducted indicating it is safe 

for vessels to pass over and adjacent to 

the fish barrier. The regulated 

navigation area will be implemented 

only in the event that the voltage of the 

barriers is decreased to one-volt per 

inch, or it is determined after additional 

testing that it is safe for vessels to pass. 

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 nonindigenous aquatic nuisance species 

through the Chicago Sanitary and Ship 

Canal. The USACE selected an electric 

barrier because it is a non-lethal 

deterrent with a proven history, which 

does not overtly interfere with 

navigation in the canal. 

A demonstration dispersal barrier 

(Barrier I) was constructed and has been 

in operation since April 2002. It is 

located approximately 30 miles from 

Lake Michigan and creates an electric 

field in the water by pulsing low voltage 

DC current through steel cables secured 

to the bottom of the canal. A second 

barrier, Barrier IIA, was constructed 800 

to 1300 feet downstream of the Barrier 

I. The potential field strength for Barrier 

IIA will be up to four times that of the 

Barrier I. Barrier IIA was successfully 

operated for the first time for 

approximately seven weeks in 

September and October 2008, while 

Barrier I was taken down for 

maintenance. Construction on a third 

barrier (Barrier IIB) is 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 the Barrier I. During subsequent 

USACE safety testing in January 2005, 

sparking was observed at points where 

metal-to-metal contact occurred 

between two barges in the barrier field. 

The electric current in the water also 

poses a safety risk to commercial and 

recreational boaters transiting the area. 

The Navy Experimental Diving Unit 

(NEDU) was tasked with researching 

how the electric current from the 

barriers would affect a human body if 

immersed in the water. The NEDU 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. Key 

partners include the American 

Waterways Operators, Illinois River 

Carriers Association, 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 closing the waterway 

until proper testing can be conducted by 

the USACE. The Coast Guard 

appreciates the commercial significance 

of this waterway and will work closely 

with the USACE to re-open the 

waterway as soon as possible; however, 

it is imperative that this safety zone be 

immediately enacted to avoid loss of 

life. 

The Coast Guard plans on publishing 

a new temporary interim rule (TIR) with 

requests for comments as soon as safety 

testing of the waterway is completed in 

order to accommodate for the results of 

the testing. The Coast Guard will then 

likely follow with a supplemental notice 

of proposed rulemaking (SNPRM) in 

order to provide a complete notice and 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Rules and Regulations 43057 

comment period for interested parties. 

We encourage the public to participate 

in the rulemaking process by submitting 

and reviewing comments and related 

materials at http://www.regulations.gov 

to the dockets associated with this TIR 

and any subsequent NPRM/SNPRM. 

Discussion of Rule 

This temporary final rule will 

suspend 33 CFR 165.T09–1247. This 

rule also continues the suspension of 33 

CFR 165.923 which was earlier 

suspended from January 18, 2009, until 

September 30, 2009 (74 FR 6352, Feb. 9, 

2009). This rule places a safety zone on 

all waters located adjacent to and over 

the electrical dispersal barriers on the 

Chicago Sanitary and Ship Canal. The 

safety zone will be enforced at all times 

the USACE operates the electrical 

dispersal barrier higher than one-volt 

per inch until safety testing is 

conducted that indicates vessels may 

safely pass. This safety zone, which 

encompasses all the waters of the 

Chicago Sanitary and Ship Canal 

located between mile marker 296.0 

(approximately 958 feet south of the 

Romeo Road Bridge) and mile marker 

296.7 (aerial pipeline located 

approximately 0.51 miles north east of 

Romeo Road Bridge), will be enforced 

by the Captain of the Port Lake 

Michigan, for such times before, during, 

and after barrier testing as he or she 

deems necessary to protect mariners and 

vessels from damage or injury. The 

Captain of the Port Lake Michigan will 

cause notice of enforcement or 

suspension of enforcement of this safety 

zone to be made by all appropriate 

means to effect the widest publicity 

among the affected segments of the 

public. Such means of notification will 

include, but are not limited to, 

Broadcast Notice to Mariners and Local 

Notice to Mariners. The Captain of the 

Port will issue a Broadcast Notice to 

Mariners notifying the public when 

enforcement of the safety zone is 

suspended. In addition, the Captain of 

the Port Lake Michigan maintains a 

telephone line that is manned 24-hours 

a day, seven days a week. The public 

can obtain information concerning 

enforcement of the safety zone by 

contacting the Captain of the Port Lake 

Michigan via the Coast Guard Sector 

Lake Michigan Command Center at 

(414) 747–7182. 

In the event that the barrier voltage is 

dropped back to one-volt per inch; it is 

deemed safe for vessels to transit the 

over and adjacent to the barriers; or the 

Captain of the Port Lake Michigan 

grants waivers to the safety zone; this 

rule implements a regulated navigation 

area to control the movements of all 

vessels passing over and adjacent to the 

barriers. This regulated navigation area 

is the same as those previously 

implemented in this area. The regulated 

navigation area encompasses all waters 

of the Chicago Sanitary and Ship Canal 

located between mile marker 295.0 

(approximately 1.1 miles south of the 

Romeo Road Bridge) and mile marker 

297.5 (approximately 1.3 miles 

northeast of the Romeo Road Bridge). 

The requirements placed on commercial 

vessels include: (1) Vessels engaged in 

commercial service, as defined in 46 

U.S.C. 2101(5), may not pass (meet or 

overtake) in the regulated navigation 

area and must make a SECURITE call 

when approaching the regulated 

navigation area to announce intentions 

and work out passing arrangements on 

either side; (2) commercial tows 

transiting the regulated navigation area 

must be made up with wire rope to 

ensure electrical connectivity between 

all segments of the tow; and (3) all upbound and down-bound barge tows that 

contain one or more red flag barges must 

be assisted by a bow boat until the 

entire tow is clear of the regulated 

navigation area. Red flag barges are 

barges certificated to carry, in bulk, any 

hazardous material as defined in 46 CFR 

150.115. Currently, 46 CFR 150.115 

defines hazardous material as: 

(a) A flammable liquid as defined in 

46 CFR 30.10–22 or a combustible 

liquid as defined in 46 CFR 30.10–15; 

(b) A material listed in Table 151.05, 

Table 1 of part 153, or Table 4 of part 

154 of Title 46, CFR; or 

(c) A liquid, liquefied gas, or 

compressed gas listed in 49 CFR 

172.101. 

The USACE has informed the Coast 

Guard that they will continue to 

contract bow boat assistance for barge 

tows containing one or more red flag 

barges. Operators of tows containing one 

or more red flag barges should notify the 

bow boat contractor at least two hours 

prior to the need for assistance. The tow 

operator should then remain in contact 

with the contractor after the initial call 

for bow boat assistance and advise the 

contractor of any delays. Information on 

how to arrange for bow boat assistance 

may be obtained by contacting the Army 

Corps of Engineers at 312–846–5333, 

during normal working hours. The Coast 

Guard will also publish this information 

in its Local Notice to Mariners. 

This temporary final rule places 

additional restrictions and operating 

requirements on all vessels within a 

smaller portion of the regulated 

navigation area, specifically, the waters 

between the Romeo Road Bridge 

(approximate mile marker 296.18) and 

mile marker 296.7 (aerial pipeline 

located approximately 0.51 miles north 

east of Romeo Road Bridge). Within this 

smaller area, this temporary final rule 

prohibits all vessels from loitering, 

mooring or laying up on the right or left 

descending banks, or making or 

breaking tows on the waters between the 

Romeo Road Bridge (approximate mile 

marker 296.18) and mile marker 296.7 

(aerial pipeline located approximately 

0.51 miles north east of Romeo Road 

Bridge). In addition, vessels may only 

enter the waters between the Romeo 

Road Bridge (approximate mile marker 

296.18) and mile marker 296.7 (aerial 

pipeline located approximately 0.51 

miles north east of Romeo Road Bridge) 

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 canal in the area located 

between the Romeo Road Bridge 

(approximate mile marker 296.18) and 

mile marker 296.7 (aerial pipeline 

located approximately 0.51 miles north 

east of Romeo Road Bridge). The 

temporary final rule also requires all 

personnel on open decks to wear a Coast 

Guard approved Type I personal 

flotation device while on the waters 

between the Romeo Road Bridge 

(approximate mile marker 296.18) and 

mile marker 296.7 (aerial pipeline 

located approximately 0.51 miles north 

east of Romeo Road Bridge). 

These restrictions are necessary for 

safe navigation of the regulated 

navigation area 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. 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 Lake Michigan and 

Commanding Officer, Marine Safety 

Unit Chicago, as his designated 

representatives for the purposes of the 

regulated navigation area. 

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 

mstockstill on DSKH9S0YB1PROD with RULES

43058 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Rules and Regulations 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

and benefits under section 6(a)(3) of that 

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. 

We expect the economic impact of 

this rule to be minimal. This 

determination is based the following: (1) 

The Chicago Sanitary and Ship Canal 

will be re-opened as soon as is 

practicable; (2) the Coast Guard expects 

to be able to re-open the Chicago 

Sanitary and Ship Canal at least to some 

commercial traffic as soon as the first 

phase of safety testing is complete; (3) 

interested parties were already notified 

by a notice of enforcement under a 

previous temporary interim rule that 

this portion of the Chicago Sanitary and 

Ship Canal would be closed for safety 

testing by the USACE from 8 a.m. until 

8 p.m. August 17, 2009, to August 21, 

2009; (4) if the Chicago Sanitary and 

Ship Canal is re-opened to commercial 

traffic, the USACE intends to pay the 

cost of the bow boat required by barge 

tows containing one or more red flag 

barges during the time this rule is 

effective; and (5) vessels may request 

permission from the Captain of the Port 

Lake Michigan to transit through the 

safety zone while the safety zone is 

enforced; (6) in exigent circumstances, it 

may be possible to temporarily drop the 

voltage of the fish barrier back to onevolt per inch. 

Because this 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. The Coast 

Guard urges interested parties to submit 

comments that specifically address the 

economic impacts of permanent or 

temporary closures of the Chicago 

Sanitary and Ship Canal. 

Small Entities 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601–612), we have considered 

whether this proposed rule 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. 

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 would affect the following 

entities, some of which might be small: 

the owners and operators of vessels 

intending to transit or anchor in a 

portion of the Chicago Sanitary and 

Ship Canal. 

This safety zone and regulated 

navigation area will not have a 

significant economic impact on a 

substantial number of small entities for 

the following reasons: (1) The Chicago 

Ship and Sanitary Canal will be reopened as soon as is practicable; (2) the 

Coast Guard expects to be able to reopen the Chicago Ship and Sanitary 

Canal at least to some commercial traffic 

as soon as the first phase of safety 

testing is complete; (3) interested parties 

were already notified by a notice of 

enforcement under the previous 

temporary interim rule that this portion 

of the Chicago Ship and Sanitary Canal 

would be closed for safety testing by the 

USACE from 8 a.m. until 8 p.m. August 

17, 2009, to August 21, 2009, (4) if the 

Chicago Ship and Sanitary Canal is reopened to commercial traffic, the 

USACE intends to pay the cost of the 

bow boat required by barge tows 

containing one or more red flag barges 

during the time this rule is effective; 

and (5) vessels may request permission 

from the Captain of the Port Lake 

Michigan to transit through the safety 

zone while the safety zone is enforced; 

(6) in exigent circumstances, it may be 

possible to temporarily drop the voltage 

of the fish barrier back to one-volt per 

inch. 

As noted above, the Coast Guard 

intends to publish an SNPRM and 

specifically seek public comment as to 

a permanent regulated navigation area 

and safety zone. The Coast Guard 

encourages public comment regarding 

the potential economic impact of the 

regulated navigation area and safety 

zone. 

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 

The Coast Guard recognizes the treaty 

rights of Native American Tribes. 

Moreover, the Coast Guard is committed 

to working with Tribal Governments to 

implement local policies and to mitigate 

Tribal concerns. We have determined 

mstockstill on DSKH9S0YB1PROD with RULES

Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Rules and Regulations 43059 

that these regulations and fishing rights 

protection need not be incompatible. 

We have also determined that this rule 

does not have Tribal implications under 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments, because it does not have 

a substantial direct effect on one or 

more Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

Nevertheless, Indian Tribes that have 

questions concerning the provisions of 

this rule or options for compliance are 

encouraged to contact the point of 

contact listed under FOR FURTHER

INFORMATION CONTACT. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded that this action is one 

of the category of actions which do not 

individually or cumulatively have 

significant effect on the human 

environment. Therefore, this rule is 

categorically excluded, under section 

2.B.2 Figure 2–1, paragraph (34)(g), of 

the Instruction and neither an 

environmental assessment nor an 

environmental impact statement is 

required. This rule involves the 

establishing, disestablishing, or 

changing of regulated navigation areas 

and security or safety zones. 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 

■ 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. 

§ 165.T09–1247 [Suspended] 

■ 2. Section 165.T09–1247 is 

suspended. 

■ 3. A new temporary section 165.T09– 

0767 is added as follows: 

§ 165.T09–0767 Safety Zone and Regulated 

Navigation Area, Chicago Sanitary and Ship 

Canal, Romeoville, IL. 

(a) Safety Zone. (1) The following area 

is a permanent safety zone: All waters 

of the Chicago Sanitary and Ship Canal 

located between mile marker 296.0 

(approximately 958 feet south of the 

Romeo Road Bridge) and mile marker 

296.7 (aerial pipeline located 

approximately 0.51 miles northeast of 

Romeo Road Bridge). 

(2) Enforcement Period. The safety 

zone will be enforced from 8 p.m. on 

August 17, 2009, until 5 p.m. on August 

25, 2009. 

(3) Notice of suspension of 

enforcement. The Captain of the Port 

Lake Michigan will enforce the safety 

zone established by this section at all 

times. However, the Captain of the Port 

Lake Michigan may temporarily 

suspend enforcement of the safety zone. 

If enforcement of the zone is 

temporarily suspended, the Captain of 

the Port Lake Michigan will cause a 

notice of the suspension of enforcement 

of this safety zone to be made by all 

appropriate means to effect the widest 

publicity among the affected segments 

of the public including publication in 

the Federal Register as practicable, in 

accordance with 33 CFR 165.7(a). Such 

means of notification may also include 

but are not limited to, Broadcast Notice 

to Mariners or Local Notice to Mariners. 

The Captain of the Port Lake Michigan 

will also issue a Broadcast Notice to 

Mariners and Local Notice to Mariners 

notifying the public when the temporary 

suspension of enforcement is over and 

the zone is once again in operation. 

(4) Regulations. (i) In accordance with 

the general regulations in § 165.23 of 

this part, entry into, transiting, or 

anchoring within this safety zone is 

prohibited unless authorized by the 

Captain of the Port Lake Michigan, or 

his on-scene representative. 

(ii) This safety zone is closed to all 

vessel traffic, except as may be 

permitted by the Captain of the Port 

Lake Michigan or his on-scene 

representative. 

(iii) 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 to act on her behalf. 

The on-scene representative of the 

Captain of the Port 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 or his on-scene 

representative may be contacted via 

VHF–FM radio Channel 16. 

(iv) Vessel operators desiring to enter 

or operate within the safety zone shall 

contact the Captain of the Port Lake 

Michigan or her on-scene representative 

to obtain permission to do so. 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 Lake Michigan or his 

on-scene representative. 

(b) Regulated Navigation Area. The 

following is a Regulated Navigation 

Area: All waters of the Chicago Sanitary 

and Ship Canal, Romeoville, IL located 

between mile marker 295.0 

(approximately 1.1 miles south of the 

Romeo Road Bridge) and mile marker 

297.5 (approximately 1.3 miles 

northeast of the Romeo Road Bridge). 

(1) Definitions. The following 

definitions apply to this section: 

Bow boat means a towing vessel 

capable of providing positive control of 

mstockstill on DSKH9S0YB1PROD with RULES

43060 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Rules and Regulations 

the bow of a tow containing one or more 

barges, while transiting the regulated 

navigation area. The bow boat must be 

capable of preventing a tow containing 

one or more barges from coming into 

contact with the shore and other moored 

vessels. 

Designated representatives means the 

Captain of the Port Lake Michigan and 

Commanding Officer, Marine Safety 

Unit Chicago. 

Hazardous material means any 

material as defined in 46 CFR 150.115. 

Red flag barge means any barge 

certificated to carry any hazardous 

material in bulk. 

(2) Notice of enforcement or 

suspension of enforcement. The Captain 

of the Port Lake Michigan will enforce 

the Regulated Navigation Area 

established by this section only upon 

notice. Captain of the Port Lake 

Michigan will cause notice of the 

enforcement of this regulated navigation 

area to be made by all appropriate 

means to effect the widest publicity 

among the affected segments of the 

public including publication in the 

Federal Register as practicable, in 

accordance with 33 CFR 165.7(a). Such 

means of notification may also include 

but are not limited to, Broadcast Notice 

to Mariners or Local Notice to Mariners. 

The Captain of the Port Lake Michigan 

will issue a Broadcast Notice to 

Mariners and Local Notice to Mariners 

notifying the public when enforcement 

of these safety zones is suspended. 

(3) Regulations. (i) The general 

regulations contained in 33 CFR 165.13 

apply. 

(ii) All up-bound and down-bound 

barge tows that contain one or more red 

flag barges transiting through the 

regulated navigation area must be 

assisted by a bow boat until the entire 

tow is clear of the regulated navigation 

area. 

(iii) Vessels engaged in commercial 

service, as defined in 46 U.S.C. 2101(5), 

may not pass (meet or overtake) in the 

regulated navigation area and must 

make a SECURITE call when 

approaching the regulated navigation 

area to announce intentions and work 

out passing arrangements on either side. 

(iv) Commercial tows transiting the 

regulated navigation area must be made 

up with wire rope to ensure electrical 

connectivity between all segments of the 

tow. 

(v) All vessels are prohibited from 

loitering between the Romeo Road 

Bridge (approximate mile marker 

296.18) and mile marker 296.7 (aerial 

pipeline located approximately 0.51 

miles north east of Romeo Road Bridge). 

(vi) Vessels may enter the waters 

between the Romeo Road Bridge 

(approximate mile marker 296.18) and 

mile marker 296.7 (aerial pipeline 

located approximately 0.51 miles north 

east of Romeo Road Bridge) 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 canal in 

the area located between the Romeo 

Road Bridge (approximate mile marker 

296.18) and mile marker 296.7 (aerial 

pipeline located approximately 0.51 

miles north east of Romeo Road Bridge). 

(vii) All personnel on open decks 

must wear a Coast Guard approved Type 

I personal flotation device while in the 

waters between the Romeo Road Bridge 

(approximate mile marker 296.18) and 

mile marker 296.7 (aerial pipeline 

located approximately 0.51 miles north 

east of Romeo Road Bridge). 

(viii) Vessels may not moor or lay up 

on the right or left descending banks of 

the waters between the Romeo Road 

Bridge (approximate mile marker 

296.18) and mile marker 296.7 (aerial 

pipeline located approximately 0.51 

miles north east of Romeo Road Bridge). 

(ix) Towboats may not make or break 

tows if any portion of the towboat or 

tow is located in the waters between the 

Romeo Road Bridge (approximate mile 

marker 296.18) and mile marker 296.7 

(aerial pipeline located approximately 

0.51 miles north east of Romeo Road 

Bridge). 

(4) 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. 

(5) 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: August 17, 2009. 

D.R. Callahan, 

Captain, U.S. Coast Guard, Commander, 

Ninth Coast Guard District, Acting. 

[FR Doc. E9–20619 Filed 8–24–09; 11:15 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0359] 

RIN 1625–AA00 

Safety Zone; Sabine River, Orange, TX 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone on 

a portion of the Sabine River, shoreline 

to shoreline, adjacent to the Naval 

Reserve Center and the Orange public 

boat ramps located in Orange, Texas. 

With the exception of participating 

vessels and patrol craft, entry into this 

zone is prohibited unless specifically 

authorized by the Captain of the Port, 

Port Arthur, or a designated 

representative. This safety zone is 

needed to protect spectators and vessels 

from potential safety hazards associated 

with a high speed boat race. 

DATES: This rule is effective from 9 a.m. 

on September 19, 2009, until 6 p.m. on 

September 20, 2009. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket USCG–2009–0359 and are 

available online by going to http:// 

www.regulations.gov, inserting USCG– 

2009–0359 in the ’’Keyword’’ box, and 

then clicking ’’Search.’’ This material is 

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, call or e-mail Mr. Scott Whalen, 

USCG, Marine Safety Unit Port Arthur, 

TX; telephone (409) 719–5806, e-mail 

scott.k.whalen@uscg.mil. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On June 12, 2009, we published a 

notice of proposed rulemaking (NPRM) 

entitled ‘‘Safety Zone; Sabine River, 

Orange, TX’’ in the Federal Register (74 

FR 27953). We received no comments 

mstockstill on DSKH9S0YB1PROD with RULES