Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Rules and Regulations 49815 

that this rule and fishing rights 

protection need not be incompatible. 

We have also determined that this 

proposed 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 proposed 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 this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(a), of the Instruction. This rule 

involves the promulgation of a 

procedural regulation, in that it merely 

removes the Henderson Harbor’s 

harbormaster as the party from whom 

one must obtain permission to moor or 

anchor in the harbor’s special anchorage 

areas. This rule does not alter the size 

or character of the special anchorage 

areas. Under figure 2–1, paragraph 

(34)(a), of the Instruction, an 

environmental analysis checklist and a 

categorical exclusion determination are 

not required for this rule. 

List of Subjects in 33 CFR Part 110 

Anchorage grounds. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 110 as follows: 

PART 110—ANCHORAGE 

REGULATIONS 

■ 1. The authority citation for part 110 

continues to read as follows: 

Authority: 33 U.S.C. 471, 1221 through 

1236, 2030, 2035, 2071; 33 CFR 1.05–1; 

Department of Homeland Security Delegation 

No. 0170.1. 

§ 110.87 [Amended] 

■ 2. In § 110.87, remove the Note. 

Dated: September 17, 2009. 

D.R. Callahan, 

Captain, U.S. Coast Guard, Commander, 

Ninth Coast Guard District, Acting. 

[FR Doc. E9–23390 Filed 9–28–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0884] 

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 5 p.m. on September 29, 

2009, until 5 p.m. on October 16, 2009. 

This temporary final rule is enforceable 

with actual notice by Coast Guard 

personnel beginning September 18, 

2009. 

ADDRESSES: Documents indicated in this 

preamble as being available in the 

docket are part of docket USCG–2009– 

0884 and are available online by going 

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

USCG–2009–0884 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 


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49816 Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Rules and Regulations 

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 

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); and 73 FR 

63633 (Oct 27, 2008). A temporary 

interim rule was issued on February 9, 

2009 (74 FR 6352). Finally, an NPRM 

was issued on May 26, 2009 (74 FR 

24722). 

In early August, 2008, the USACE 

notified the Coast Guard that it planned 

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 mitigation 

procedures for the barrier operating at 

one volt per inch 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 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. The USACE began safety testing 

in consultation with the U.S. Coast 

Guard on August 17, 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. Because the USACE 

decided that the voltage and operating 

parameters had to be immediately 

increased prior to the completion of 

safety testing, the USCG determined that 

temporary closure of the canal to all 

vessels through a safety zone was 

necessary until the risks were better 

understood. This resulted in successive 

temporary final rules that suspended the 

prior temporary interim rule. These 

temporary final rules enacting safety 

zones were published in the Federal 

Register on August 26, 2009 (74 FR 

43055) and September 02, 2009 (74 FR 

45318). 

Because testing and analysis of the 

risks to persons and vessels are ongoing 

and immediate action is needed to 

prevent injury to people and vessels, it 

was not possible to provide a full notice 

and comment period. The Captain of the 

Port Lake Michigan retains the authority 

to permit vessels to enter the safety 

zone. As safety testing results become 

available, the Captain of the Port Lake 

Michigan will make every effort to 

permit vessels to pass for which there is 

a decreased or known risk of injury or 

property damage. If vessels wish to 

enter the safety zone they must receive 

permission from the Captain of the Port 

Lake Michigan to do so and must follow 

all orders from the Captain of the Port 

Lake Michigan or her designated onscene representative while in the zone. 

If, for any reasons, the safety zone is 

at any time suspended, the terms of the 

regulated navigation area will apply to 

all vessels. The Captain of the Port Lake 

Michigan will cause notice of the 

enforcement of the regulated navigation 

area to be made by all appropriate 

means to effect the widest publicity 

among the affected segments of the 

public. 

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 1,300 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 


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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 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 re-open the waterway as 

soon as possible; however, it is 

imperative that this safety zone be 

immediately enacted to avoid loss of 

life. 

As soon as safety testing and analysis 

are completed, the Coast Guard plans on 

publishing a new temporary interim 

rule (TIR) with requests for comments. 

Although the Coast Guard anticipates 

being able to permit some vessels to 

transit through the fish barrier after 

testing is complete, it is currently 

anticipated any subsequent TIR will 

continue to place restrictions on vessels 

including prohibiting some vessels from 

transiting through the fish barrier 

entirely. The Coast Guard will then 

likely follow with a supplemental notice 

of proposed rulemaking (SNPRM) in 

order to provide a complete notice and 

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 the 

anticipated TIR and any subsequent 

NPRM/SNPRM. 

Affected parties are reminded that the 

USACE may again raise the operating 

parameters of the fish barrier in 

response to ongoing tests regarding the 

effectiveness of the barrier on the Asian 

Carp. If this occurs, it is possible that 

fewer vessels will be given permission 

to enter the safety zone until further 

safety testing and analysis can be 

completed and current timelines for a 

final rule will be extended. 

Discussion of Rule 

This temporary final rule removes 33 

CFR 165.T09–1247. This rule suspends 

33 CFR 165.923 until 5 p.m. on October 

16, 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. The Coast Guard has 

deemed this safety zone necessary from 

September 18, 2009, until October 16, 

2009, because safety testing is still being 

conducted on vessels to determine 

whether and under what conditions 

vessels can safely pass adjacent to and 

over the electrical dispersal barriers. 

Although every effort will be made to 

permit vessels to pass as information 

becomes available; current estimates 

indicate that testing and analysis will 

not be completed by the USACE until at 

least October 16, 2009. Therefore, this 

safety zone is necessary until that time 

in order to prevent loss of life and 

damage to property. 

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 affect the widest publicity 

among the affected segments of the 

public. Such means of notification will 

include, but is not limited to, Broadcast 

Notice to Mariners and Local Notice to 

Mariners. The Captain of the Port Lake 

Michigan will issue a Broadcast Notice 

to Mariners notifying the public when 

enforcement of the safety zone is 

suspended. In addition, 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 enforcement of 

the safety zone is temporarily 

suspended, this rule implements a 

regulated navigation area to control the 

movements of all vessels passing over 

and adjacent to the barriers. The Captain 

of the Pork Lake Michigan will cause 

notice of the enforcement of the 

regulated navigation area to be made by 

all appropriate means to effect the 

widest publicity among the affected 

segments of the public. This regulated 

navigation area closely mirrors 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: 


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(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. 

In the past, the USACE contracted for 

bow boat assistance for barge tows 

containing one or more red flag barges. 

According to the USACE, 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. All 

mariners are reminded that the Coast 

Guard does not provide bow boat 

assistance. During testing of the barrier, 

the USACE has contracted for bow boat 

assistance for commercial vessels. 

However, there is no guarantee that the 

USACE will continue to fund bow boat 

assistance. In the event such funding 

stops, mariners should be ready to 

arrange for their own bow boat 

assistance. 

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 

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) 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 Chicago Sanitary 

and Ship Canal will be permitted to 

enter the safety zone under certain 

conditions; (2) 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; and, (3) in exigent 

circumstances, it may be possible to 

temporarily drop the voltage of the fish 

barrier back to one volt 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. Comments can 

be made online by going to http:// 

www.regulations.gov, inserting USCG– 

2009–0884 in the ‘‘Keyword’’ box, and 

then clicking ‘‘Search.’’ 

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-forprofit 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. The Coast 

Guard, nonetheless, expects that this 

temporary final rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

we offer to assist small entities in 

understanding the rule so that they can 

better evaluate its effects on them and 

participate in the rulemaking process. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 

Ombudsman evaluates these actions 

annually and rates each agency’s 

responsiveness to small business. If you 

wish to comment on actions by 

employees of the Coast Guard, call 1– 

888–REG–FAIR (1–888–734–3247). The 

Coast Guard will not retaliate against 

small entities that question or complain 

about this rule or any policy or action 

of the Coast Guard. 


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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 

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; 

Public Law 107–295, 116 Stat. 2064; 

Department of Homeland Security Delegation 

No. 0170.1. 

§ 165.T09–1247 [Removed] 

■ 2. Remove § 165.T09–1247. 

§ 165.923 [Suspended] 

■ 3. Section 165.923 is suspended until 

October 16, 2009. 

■ 4. A new temporary section 165.T09– 

0884 is added as follows: 

§ 165.T09–0884 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 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). 

(2) Enforcement Period. The safety 

zone will be enforced from 5 p.m. on 

September 18, 2009, until 5 p.m. on 

October 16, 2009. This safety zone is 

enforceable with actual notice by Coast 

Guard personnel beginning September 

18, 2009. 

(3) Notice of suspension of 

enforcement. The Captain of the Port 


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49820 Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Rules and Regulations 

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 section 165.23 of this 

part, entry into, transiting, or anchoring 

within this safety zone is prohibited 

unless authorized by the Captain of the 

Port Lake Michigan, or her 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 her 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 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 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 her 

on-scene representative. 

(v) If a vessel is permitted by the 

Captain of the Port Lake Michigan or her 

on-scene representative to transit the 

safety zone, all personnel on open decks 

must wear a Coast Guard approved Type 

I personal flotation device while in the 

safety zone. 

(5) Persons on board any vessel 

transiting this safety zone in accordance 

with the rule or otherwise are advised 

they do so at their own risk. 

(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: 

Designated representatives means the 

Captain of the Port Lake Michigan and 

Commanding Officer, Marine Safety 

Unit Chicago. 

Red flag barge means any barge 

certificated to carry any hazardous 

material in bulk. 

Hazardous material means any 

material as defined in 46 CFR 150.115. 

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 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. 

(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 this regulated navigation area 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. Any person on board 

any vessel transiting this regulated 

navigation area in accordance with this 


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Federal Register / Vol. 74, No. 187 / Tuesday, September 29, 2009 / Rules and Regulations 49821 

rule or otherwise does so at their own 

risk. 

(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: September 18, 2009. 

D.R. Callahan, 

Captain, U.S. Coast Guard, Commander, 

Ninth Coast Guard District, Acting. 

[FR Doc. E9–23443 Filed 9–28–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0474] 

RIN 1625–AA00 

Safety Zone; Parker US Open 

Nationals; Parker, AZ 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a safety zone upon the 

navigable waters of Lake Moovalya 

reigon on the lower Colorado River in 

support of the Parker US Open 

Nationals. This safety zone is necessary 

to provide for the safety of the 

participants, crew, spectators, 

participating vessels, and other users of 

the waterway. Persons and vessels are 

prohibited from entering into, transiting 

through, or anchoring within this safety 

zone unless authorized by the Captain 

of the Port, or his designated 

representative. 

DATES: This rule is effective from 8 a.m. 

on October 9, 2009 through 6 p.m. on 

October 11, 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–2009–0474 and are 

available online by going to http:// 

www.regulations.gov, inserting USCG– 

2009–0474 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 Petty Officer Shane 

Jackson, USCG, Waterways 

Management, U.S. Coast Guard Sector 

San Diego at telephone 619–278–7262, 

e-mail Shane.E.Jackson@uscg.mil. If you 

have questions on viewing or submitting 

material to the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On July 6, 2009 we published a notice 

of proposed rulemaking (NPRM) 

entitled Safety zone; Parker US Open 

Nationals; Parker, AZ in the Federal 

Register (74 FR 31900). We received no 

comments on the proposed rule. No 

public meeting was requested, and none 

was held. 

Background and Purpose 

This temporary safety zone is 

established in support of the Parker US 

Open Nationals, a marine event that 

includes participating vessels along an 

established and marked course upon the 

Colorado River in Parker, AZ. This 

temporary safety zone is necessary to 

provide for the safety of the crews, 

spectators, and participants of the race 

and is also necessary to protect other 

vessels and users of the waterway. 

Discussion of Comments and Changes 

There were no comments submitted 

and no changes were made to the 

regulation. 

Discussion of Rule 

The Coast Guard is establishing a 

safety zone that will be enforced from 8 

a.m. to 6 p.m. on October 9, 2009 

through October 11, 2009. The limits of 

this temporary safety zone are as 

follows: Starting at the Bluewater 

Marina in Parker, AZ, extending 

approximately 6 miles to La Paz County 

Park. This safety zone is necessary to 

provide for the safety of the crews, 

spectators, and participants of the 

Parker US Open Nationals and to 

protect other vessels and users of the 

waterway. Persons and vessels will be 

prohibited from entering into, transiting 

through, or anchoring within this safety 

zone unless authorized by the Captain 

of the Port, or his designated 

representative. 

Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

executive orders related to rulemaking. 

Below we summarize our analyses 

based on 13 of these statutes or 

executive orders. 

Regulatory Planning and Review 

This rule is not a significant 

regulatory action under section 3(f) of 

Executive Order 12866, Regulatory 

Planning and Review, and does not 

require an assessment of potential costs 

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

Order. The Office of Management and 

Budget has not reviewed it under that 

Order. It is not ‘‘significant’’ under the 

regulatory policies and procedures of 

the Department of Homeland Security 

(DHS). We expect the economic impact 

of this rule to be so minimal that a full 

Regulatory Evaluation is unnecessary. 

The safety zone is of a limited duration, 

ten hours per day for a period of three 

days, and is limited to a relatively small 

geographic area. 

Small Entities 

Under the Regulatory Flexibility Act 

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

whether this 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. 

The safety zone will affect the following 

entities some of which may be small 

entities: the owners and operators of 

pleasure craft engaged in recreational 

activities and sightseeing. This safety 

zone will not have a significant 

economic impact on a substantial 

number of small entities because the 

safety zone is limited in scope and 

duration as it is in effect for ten hours 

per day for a period of three days. 

Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Pub. L. 104–121), 

in the NPRM we offered to assist small 

entities in understanding the rule so 

that they could better evaluate its effects 

on them and participate in the 

rulemaking process. 

Small businesses may send comments 

on the actions of Federal employees 

who enforce, or otherwise determine 

compliance with, Federal regulations to 

the Small Business and Agriculture 

Regulatory Enforcement Ombudsman 

and the Regional Small Business 

Regulatory Fairness Boards. The 


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