[Federal Register Volume 74, Number 187 (Tuesday, September 29, 2009)]
[Rules and Regulations]
[Pages 49815-49821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23443]


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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.

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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

[[Page 49816]]

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 one-volt 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 on-scene 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 non-indigenous 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

[[Page 49817]]

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 up-bound 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:

[[Page 49818]]

    (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-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations of less than 50,000. An RFA analysis is not required when a 
rule is exempt from notice and comment rulemaking under 5 U.S.C. 
553(b). The Coast Guard determined that this rule is exempt from notice 
and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). Therefore, an 
RFA analysis is not required for this rule. 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.

[[Page 49819]]

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.


0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 
3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; 
Public Law 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

Sec.  165.T09-1247  [Removed]

0
2. Remove Sec.  165.T09-1247.


Sec.  165.923  [Suspended]

0
3. Section 165.923 is suspended until October 16, 2009.
0
4. A new temporary section 165.T09-0884 is added as follows:


Sec.  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

[[Page 49820]]

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

[[Page 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