[Federal Register Volume 70, Number 218 (Monday, November 14, 2005)]
[Proposed Rules]
[Pages 69128-69130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22497]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[CGD09-05-131]
RIN 1625-AA11


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

AGENCY: Coast Guard, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Coast Guard is proposing to establish a permanent 
regulated navigation area on the Chicago Sanitary and Ship Canal on the 
Illinois Waterway near Romeoville, IL. This permanent regulated 
navigation area will place navigational and operational restrictions on 
all vessels transiting through the demonstration electrical dispersal 
barrier located on the Chicago Sanitary and Ship Canal. This regulated 
navigation area is necessary to protect vessels and their crews from 
harm as a result of electrical discharges emitting from the electrical 
dispersal barrier as vessels transit over it.

DATES: Comments and related materials must reach the Coast Guard on or 
before December 14, 2005.

ADDRESSES: You may mail comments and related material to Commander 
(dpw-1) Ninth Coast Guard District, 1240 E.9th Street, Room 2069, 
Cleveland, OH 44199. The Ninth Coast Guard District Planning and 
Development Section (dpw-1) maintains the public docket for this 
rulemaking. Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
will become part of this docket and will be available for inspection or 
copying between 8 a.m. and 4 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have further questions on this 
rule, contact CDR K. Phillips, Planning and Development Section, Ninth 
Coast Guard District, Cleveland, OH at (216) 902-6045.

SUPPLEMENTARY INFORMATION:

Request for Comments

    We encourage you to submit comments and related materials. If you 
submit a comment, please include your name and address, identify the 
docket number for this rulemaking [CGD09-05-131], indicate the specific 
section of this document to which each comment applies, and give the 
reason for each comment. You may submit your comments and material by 
mail (see ADDRESSES). If you submit them by mail or delivery, submit 
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable 
for copying and electronic filing. If you submit them by mail and would 
like to know that they reached the facility, please enclose a stamped, 
self-addressed postcard or envelope. We will consider all comments and 
material received during the comment period, which may result in a 
modification to the rule.

Public Meeting

    We do not now plan to hold a public meeting. But you may submit a 
request for a public meeting (see ADDRESSES) explaining why one would 
be beneficial. If we determine that one would aid this rulemaking, we 
will hold one at a time and place announced by a later notice in the 
Federal Register.

Background and Purpose

    On January 7, 2005, the U.S. Army Corps of Engineers, in close 
coordination with the U. S. Coast Guard, conducted preliminary safety 
tests on the electrical dispersal barrier located at Mile Marker 296.5 
of the Chicago Sanitary and Ship Canal near Romeoville, IL. This 
barrier was constructed to prevent Asian Carp from entering Lake 
Michigan through the Illinois River system by generating a low-voltage 
electric field across the canal. The Coast Guard and Army Corps of 
Engineers conducted field tests to ensure the continued safe navigation 
of commercial and recreational traffic across the barrier; however, 
results indicated a significant arcing risk and hazardous electrical 
discharges as vessels transited the barrier posing a significant risk 
to navigation through the barrier. To mitigate these risks, the 
proposed rule would place navigational and operational restrictions on 
all vessels transiting through the vicinity.
    On January 26, 2005 a regulated navigational area (RNA) was 
published in the Federal Register (70 FR 3625) as a temporary final 
rule. The temporary final rule was extended on August 10, 2005 (70 FR 
46407). Testing has continued since the regulation was first proposed 
in January 2005, but has not yet been completed. Preliminary results 
indicate that further tests and analysis are warranted and that this 
process may continue for an undetermined period of time. Therefore, the 
Coast Guard is proposing to establish a permanent RNA.

[[Page 69129]]

Discussion of Rule

    Until the potential electrical hazards can be rectified, the Coast 
Guard will require vessels transiting the regulated navigation area to 
adhere to specified operational and navigational requirements. The 
regulated navigation area encompasses all waters of the Chicago 
Sanitary and Ship Canal from the north side of the Romeo Highway Bridge 
at Mile Marker 296.1 to the aerial pipeline arch located at Mile Marker 
296.7. The requirements placed on vessels include: All vessels are 
prohibited from loitering in the regulated navigation area, vessels may 
enter the regulated navigation area for the sole purpose of transiting 
to the other side, and must maintain headway throughout the transit, 
all personnel on open decks must wear a Coast Guard approved Type I 
personal flotation device while in the regulated navigation area, 
vessels may not moor or lay up on the right or left descending banks in 
the regulated navigation area, towboats may not make or break tows in 
the regulated navigation area, vessels may not pass (meet or overtake) 
in the regulated navigation area and must make a SECURITE call when 
approaching the barrier to announce intentions and work out passing 
arrangements on either side, and commercial tows transiting the 
regulated navigation area must be made up with wire rope to ensure 
electrical connectivity between all segments of the tow.
    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 recent safety tests conducted by the Army Corps 
of Engineers. Deviation from this rule is prohibited unless 
specifically authorized by the Commander, Ninth Coast Guard District or 
his designated representative. The Commander, Ninth Coast Guard 
District will designate Captain of the Port, Lake Michigan as his 
designated representative for the purposes of this rule.

Regulatory Evaluation

    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. It has not been reviewed by the Office of 
Management and Budget 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 under the regulatory policies and procedures 
of DHS is unnecessary. This determination is based on the fact that 
traffic will still be able to transit through the RNA.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this proposed rule would have a significant economic 
impact on a substantial number of small entities. The term ``small 
entities'' comprises small businesses, not-for-profit organizations 
that are independently owned and operated and are not dominant in their 
fields, and governmental jurisdictions with populations of less than 
50,000.
    We suspect that there may be small entities affected by this rule 
but are unable to provide more definitive information as to the number 
of small entities that may be affected. The risk, outlined above, is 
severe and requires that immediate action be taken. The Coast Guard 
will evaluate whether a substantial number of small entities are 
affected as more information becomes available.
    If you think that your business, organization, or governmental 
jurisdiction qualifies as a small entity and that this rule will have a 
significant economic impact on it, please submit a comment to the 
Docket Management Facility at the address under ADDRESSES. In your 
comment, explain why you think it qualifies and how and to what degree 
this rule would economically affect it.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we offered 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 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).

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such an expenditure, we 
do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and

[[Page 69130]]

responsibilities between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD, 
which guides the Coast Guard in complying with the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and 
have made a preliminary determination that there are no factors in this 
case that would limit the use of a categorical exclusion under section 
2.B.2 of the Instruction. Therefore we believe this rule should be 
categorically excluded, under figure 2-1, paragraph 34(g) from further 
environmental documentation. This temporary rule establishes a 
regulated navigation area and as such is covered by this paragraph.
    A final ``Environmental Analysis Check List'' and a final 
``Categorical Exclusion Determination'' are available in the docket 
where indicated under ADDRESSES. Comments on this section will be 
considered before we make the final decision on whether the rule should 
be categorically excluded from further environmental review.

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 proposes 
to amend 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; 50 
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. 
L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.

    2. Add Sec.  165.923 to read as follows:


Sec.  165.923  Regulated Navigation Area between mile markers 296.1 and 
296.7 of the Chicago Sanitary and Ship Canal located near Romeoville, 
IL.

    (a) Location. The following is a Regulated Navigation Area: All 
waters of the Chicago Sanitary and Ship Canal, Romeoville, IL between 
the north side of Romeo Road Bridge Mile Marker 296.1, and the south 
side of the Aerial Pipeline Mile Marker 296.7.
    (b) Regulations. (1) The general regulations contained in 33 CFR 
165.13 apply.
    (2) All vessels are prohibited from loitering in the regulated 
navigation area.
    (3) Vessels may enter the regulated navigation area for the sole 
purpose of transiting to the other side, and must maintain headway 
throughout the transit.
    (4) All personnel on open decks must wear a Coast Guard approved 
Type I personal flotation device while in the regulated navigation 
area.
    (5) Vessels may not moor or lay up on the right or left descending 
banks of the regulated navigation area.
    (6) Towboats may not make or break tows in the regulated navigation 
area.
    (7) Vessels may not pass (meet or overtake) in the regulated 
navigation area and must make a SECURITE call when approaching the 
barrier to announce intentions and work out passing arrangements on 
either side.
    (8) Commercial tows transiting the regulated navigation area must 
be made up with wire rope to ensure electrical connectivity between all 
segments of the tow.
    (c) Compliance. All persons and vessels shall comply with this rule 
and any additional instructions of the Ninth Coast Guard District 
Commander, or his designated representative. The Captain of the Port, 
Lake Michigan is a designated representative of the District Commander 
for the purposes of this rule.

    Dated: October 31, 2005.
T.W. Sparks,
Captain, U.S. Coast Guard, Commander, Ninth Coast Guard District, 
Acting.
[FR Doc. 05-22497 Filed 11-10-05; 8:45 am]
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