24722 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Proposed Rules 

to latitude 45°39′02.10′′ N, longitude 

122°45′21.67′′ W; thence continuing 

east-southeasterly to latitude 

45°38′59.15′′ N, longitude 122°45′16.38′′ 

W; thence continuing southwesterly to 

latitude 45°38′51.03′′ N, longitude 

122°45′25.57′′ W; thence continuing 

westerly to latitude 45°38′51.54′′ N, 

longitude 122°45′26.35′′ W; thence 

continuing northwesterly to latitude 

45°39′06.27′′ N, longitude 122°45′40.50′′ 

W; thence continuing northnortheasterly to the beginning point. 

(9) Upper Vancouver Anchorage. An 

area enclosed by a line beginning northnortheast of Hayden Island at latitude 

45°38′43.44′′ N, longitude 122°44′39.50′′ 

W; thence continuing northeasterly to 

45°38′26.98′′ N, longitude 122°43′25.87′′ 

W; thence continuing east-northeasterly 

to latitude 45°38′17.31′′ N, longitude 

122°42′54.69′′ W; thence continuing 

easterly to latitude 45°38′12.40′′ N, 

longitude 122°42′43.93′′ W; thence 

continuing east-southeasterly to latitude 

45°37′40.53′′ N, longitude 122°41′44.08′′ 

W; thence south-southeasterly to 

latitude 45°37′36.11′′ N, longitude 

122°41′48.86′′ W; thence continuing 

west-southwesterly to latitude 

45°37′52.20′′ N, longitude 122°42′19.50′′ 

W; thence continuing westsouthwesterly to latitude 45°38′10.75′′ 

N, longitude 122°43′08.89′′ W; thence 

continuing southwesterly to latitude 

45°38′18.79′′ N, longitude 122°43′44.83′′ 

W; thence continuing westerly to 

latitude 45°38′41.37′′ N, longitude 

122°44′40.44′′ W; thence continuing 

northeasterly to the point of beginning. 

(10) Cottonwood Island Anchorage. 

An area enclosed by a line beginning 

west-southwest of Longview, WA at 

latitude 46°05′56.88′′ N, longitude 

122°56′53.19′′ W; thence continuing 

easterly to latitude 46°05′14.06′′ N, 

longitude 122°54′45.71′′ W; thence 

continuing east-southeasterly to latitude 

46°04′57.12′′ N, longitude 122°54′12.41′′ 

W; thence continuing southeasterly to 

latitude 46°04′37.55′′ N, longitude 

122°53′45.80′′ W; thence continuing 

southeasterly to latitude 46°04′13.72′′ N, 

longitude 122°53′23.66′′ W; thence 

continuing southeasterly to latitude 

46°03′54.94′′ N, longitude 122°53′11.81′′ 

W; thence continuing southerly to 

latitude 46°03′34.96′′ N, longitude 

122°53′03.17′′ W; thence continuing 

westerly to latitude 46°03′32.06′′ W, 

longitude 122°53′19.68′′ N; thence 

continuing north-northwesterly to 

latitude 46°03′50.84′′ N, longitude 

122°53′27.81′′ W; thence continuing 

northwesterly to latitude 46°04′08.10′′ 

N, longitude 122°53′38.70′′ W; thence 

continuing northwesterly to latitude 

46°04′29.41′′ N, longitude 122°53′58.17′′ 

W; thence continuing northnorthwesterly to latitude 46°04′49.89′′ 

N, longitude 122°54′21.57′′ W; thence 

continuing northwesterly to latitude 

46°05′06.95′′ N, longitude 122°54′50.65′′ 

W; thence continuing northwesterly to 

latitude 46°05′49.77′′ N, longitude 

122°56′8.12′′ W; thence continuing eastnortheasterly to the point of the 

beginning. 

(b) Regulations. (1) All designated 

anchorages are intended for the primary 

use of deep-draft vessels over 200 feet 

in length. 

(2) If a vessel under 200 feet in length 

is anchored in a designated anchorage, 

the master or person in charge of the 

vessel shall: 

(i) Ensure that the vessel is anchored 

so as to minimize conflict with large, 

deep-draft vessels utilizing or seeking to 

utilize the anchorage; and 

(ii) Move the vessel out of the area if 

requested by the master of a large, deepdraft vessel seeking to enter or depart 

the area or if directed by the Captain of 

the Port. 

(3) Vessels desiring to anchor in 

designated anchorages shall contact the 

pilot office that manages that anchorage 

to request an appropriate position to 

anchor. Columbia River Bar Pilots 

manage Astoria North Anchorage and 

Astoria South Anchorage. Columbia 

River Pilots manage all designated 

anchorages upriver from Astoria. 

(4) No vessel may occupy a 

designated anchorage for more than 30 

consecutive days without permission 

from the Captain of the Port. 

(5) No vessel being layed-up or 

dismantled or undergoing major 

alterations or repairs may occupy a 

designated anchorage without 

permission from the Captain of the Port. 

(6) No vessel carrying a Cargo of 

Particular Hazard listed in § 126.10 of 

this chapter may occupy a designated 

anchorage without permission from the 

Captain of the Port. 

(7) No vessel in a condition such that 

it is likely to sink or otherwise become 

a hazard to the operation of other 

vessels shall occupy a designated 

anchorage except in an emergency, and 

then only for such periods as may be 

authorized by the Captain of the Port. 

(8) Vessels anchoring in Astoria North 

Anchorage should avoid placing their 

anchor in the charted cable area. 

Dated: May 8, 2009. 

J.P. Currier, 

Rear Admiral, U.S. Coast Guard, Commander, 

Thirteenth Coast Guard District. 

[FR Doc. E9–12060 Filed 5–22–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2008–1247] 

RIN 1625–AA11 

Regulated Navigation Area and Safety 

Zone, Chicago Sanitary and Ship 

Canal, Romeoville, IL 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard proposes 

establishing a regulated navigation area 

and safety zone on the Chicago Sanitary 

and Ship Canal near Romeoville, 

Illinois. This proposed regulated 

navigation area and safety zone places 

navigational and operational restrictions 

on all vessels transiting the navigable 

waters located adjacent to and over the 

Army Corps of Engineers electrical 

dispersal fish barrier system. 

DATES: Comments and related material 

must either be submitted to our online 

docket via http://www.regulations.gov 

on or before July 27, 2009 or reach the 

Docket Management Facility by that 

date. 

ADDRESSES: You may submit comments 

identified by Coast Guard docket 

number USCG–2008–1247 using any 

one of the following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001. 

(4) Hand delivery: Same as mail 

address above, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The telephone number 

is 202–366–9329. 

To avoid duplication, please use only 

one of these methods. For instructions 

on submitting comments, see the 

‘‘Public Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this proposed 

rule call LT Ann Henkelman, 

Waterways Management Branch, Ninth 

Coast Guard District, telephone 216– 

902–6288. If you have questions on 

viewing or submitting material to the 

docket, call Renee V. Wright, Program 

Manager, Docket Operations, telephone 

202–366–9826. 

Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Proposed Rules 24723 

SUPPLEMENTARY INFORMATION: 

Public Participation and Request for 

Comments 

We encourage you to participate in 

this rulemaking by submitting 

comments and related materials. All 

comments received will be posted, 

without change, to http:// 

www.regulations.gov and will include 

any personal information you have 

provided. 

Submitting Comments 

If you submit a comment, please 

include the docket number for this 

rulemaking (USCG–2008–1247), 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. You 

may submit your comments and 

material online, or by fax, mail or hand 

delivery, but please use only one of 

these means. We recommend that you 

include your name and a mailing 

address, an e-mail address, or a phone 

number in the body of your document 

so that we can contact you if we have 

questions regarding your submission. 

To submit your comment online, go to 

http://www.regulations.gov, select the 

Advanced Docket Search option on the 

right side of the screen, insert ‘‘USCG– 

2008–1247’’ in the Docket ID box, press 

Enter, and then click on the balloon 

shape in the Actions column. If you 

submit your comments by mail or hand 

delivery, submit them in an unbound 

format, no larger than 81⁄2 by 11 inches, 

suitable for copying and electronic 

filing. If you submit them by mail and 

would like to know that they reached 

the Facility, please enclose a stamped, 

self-addressed postcard or envelope. We 

will consider all comments and material 

received during the comment period 

and may change the rule based on your 

comments. 

Viewing Comments and Documents 

To view comments, as well as 

documents mentioned in this preamble 

as being available in the docket, go to 

http://www.regulations.gov, select the 

Advanced Docket Search option on the 

right side of the screen, insert USCG– 

2008–1247 in the Docket ID box, press 

Enter, and then click on the item in the 

Docket ID column. You may also visit 

the Docket Management Facility in 

Room W12–140 on the ground floor of 

the Department of Transportation West 

Building, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. We have an 

agreement with the Department of 

Transportation to use the Docket 

Management Facility. 

Privacy Act 

Anyone can search the electronic 

form of all comments received into any 

of our dockets by the name of the 

individual submitting the comment (or 

signing the comment, if submitted on 

behalf of an association, business, labor 

union, etc.). You may review a Privacy 

Act notice regarding our public dockets 

in the January 17, 2008, issue of the 

Federal Register (73 FR 3316). 

Public Meeting 

We do not now plan to hold a public 

meeting. But you may submit a request 

for one to the Docket Management 

Facility at the address under 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 

The Nonindigenous Aquatic Nuisance 

Prevention and Control Act of 1990, as 

amended by the National Invasive 

Species Act of 1996, authorized the 

Army Corps of Engineers (Army Corps) 

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 Army 

Corps selected an electric barrier 

because it is a non-toxic deterrent with 

a proven history and also does not 

overtly interfere with navigation in the 

canal. 

In April 2002, the Army Corps 

energized a demonstration electrical 

dispersal barrier located in the Chicago 

Sanitary and Ship Canal approximately 

30 miles from Lake Michigan. The 

demonstration barrier, commonly 

referred to as ‘‘Barrier I,’’ generates a 

low-voltage electric field (a maximum of 

approximately one-volt per inch) across 

the canal, which connects the Illinois 

River to Lake Michigan. The electric 

field is created by pulsing low voltage 

DC current through steel cables secured 

to the bottom of the canal. 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 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 

Army Corps safety testing in January 

2005, sparking was observed upon 

metal-to-metal contact between two 

independent barges in the barrier field. 

In 2006, the Army Corps completed 

construction of a second barrier, 

‘‘Barrier IIA.’’ Barrier IIA was 

constructed 800 to 1300 feet 

downstream of the Barrier I. Barrier IIA 

is designed to operate continuously at 

one-volt per inch, and can operate at 

higher levels. Because of its design, 

Barrier IIA can generate a more 

powerful electric field, over a larger area 

within the Chicago Sanitary and Ship 

Canal, than Barrier I. The potential field 

strength for Barrier IIA will be up to 

four times that of the Barrier I. Barrier 

IIA was successfully operated for the 

first time, for approximately seven 

weeks in September and October 2008, 

while Barrier I was taken down for 

maintenance. Construction on a third 

barrier (Barrier IIB) is planned; Barrier 

IIB would augment the capabilities of 

Barriers I and IIA. 

The electric current in the water 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. This 

comprehensive, independent analysis of 

Barriers I and IIA, conducted in 2008, 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. 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. Additionally, 

sparking between barges transiting the 

barrier (a risk to flammable cargoes) 

occurred at the one-volt per inch level. 

Operating Barrier IIA at four-volts per 

inch (the maximum capacity) presents a 

higher risk; however, there is no data 

yet to indicate how much higher. 

A Safety Work Group facilitated by 

the Coast Guard and in partnership with 

the Army Corps 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. 

Eleven stakeholders have regularly 

attended the Safety Work Group. Key 

partners include the American 

Waterways Operators; Illinois River 

Carriers Association; Army Corps, 

Chicago District, Coast Guard Marine 

Safety Unit Chicago; Coast Guard Sector 

Lake Michigan; and the Ninth Coast 

Guard District. During the past 12 

months, the Coast Guard has hosted 5 

Safety Work Group meetings with full 

participation from stakeholders. The 

24724 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Proposed Rules 

Coast Guard and the Army Corps 

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. 

The Army Corps notified the Coast 

Guard in December 2008, that it 

planned to activate Barrier IIA on a fulltime basis starting in middle to late 

January 2009. Due to technical issues, 

Barrier IIA was not activated until April 

8, 2009. Both Barrier IIA and Barrier I 

are operating at the same time. 

Operation of both Barrier I and Barrier 

IIA at the same time provides a back up 

should one barrier cease to operate. 

The Coast Guard advised the Army 

Corps in December 2008, that it had no 

objection to the Army Corps activating 

Barrier IIA at a maximum strength of 

one-volt per inch, which is the 

operating strength of Barrier I. In 

addition, the Coast Guard advised the 

Army Corps that it did not object to the 

Army Corps’ plans for additional testing 

of Barrier IIA at peak field strength of 

up to four-volts per inch. Peak field 

strength tests are necessary to evaluate 

safety risks to mariners and their vessels 

when Barrier IIA is operated at a higher 

voltage. 

Based on the commercial significance 

and successful transit history of the 

Barrier I by thousands of barges since its 

inception in April 2002, and Barrier IIA 

during Fall 2008, the Coast Guard has 

not chosen to close the waterway 

despite the proven electrical discharge 

hazard and additional safety concerns. 

Tows spanning Barrier IIA and the coalfired power plant barge loading area just 

south of the regulated navigation area 

remain a concern. Accordingly, because 

of the safety risks involved, it is 

imperative that the Coast Guard 

implements increased safety measures 

for the operation of both Barriers I and 

IIA. 

To mitigate the safety risks created by 

operation of both barriers, the Coast 

Guard established a temporary interim 

rule (TIR) on January 16, 2009, which 

placed navigational and operational 

restrictions on all vessels transiting 

through a regulated navigation area 

located adjacent to and over the barriers. 

33 CFR 165.T09–1247, 74 FR 6357, Feb. 

9, 2009. The TIR public comment period 

closed on April 10, 2009. To date, no 

comments have been received regarding 

the TIR. 

This notice of proposed rulemaking 

(NPRM) proposes establishment of 

permanent regulations, similar to the 

regulations contained in the TIR. Like 

the TIR, this rule proposes placement of 

navigational and operational restrictions 

on all vessels transiting through a 

regulated navigation area located 

adjacent to and over the barriers. 

Specifically, the Coast Guard proposes 

requiring vessels transiting the regulated 

navigation area to adhere to specified 

operational and navigational 

requirements. In addition, the Coast 

Guard will occasionally enforce a safety 

zone, which prohibits the movement of 

all vessels and persons through the 

electrical dispersal barriers during tests 

or other periods of time that Barrier IIA 

is operated at voltages higher than onevolt per inch. 

To view the TIR, this NPRM, as well 

as documents mentioned in this 

preamble as being available in the 

docket, go to http://www.regulations.gov 

at any time, click on ‘‘Search for 

Dockets,’’ and enter the docket number 

for this rulemaking (USCG–2008–1247) 

in the Docket ID box, and click enter. 

You may also visit the Docket 

Management Facility in Room W12–140 

on the ground floor of the DOT West 

Building, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

Discussion of Proposed Rule 

This rule proposes removal of 33 CFR 

165.923 and 33 CFR 165.T09–1247. This 

rule proposes establishment of 

permanent regulations, which would 

place navigational and operational 

restrictions on all vessel transits through 

the navigable waters located adjacent to 

and over the electrical dispersal barriers 

located on the Chicago Sanitary and 

Ship Canal. 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; 

(2) vessels engaged in commercial 

service must work out passing 

arrangements prior to entering the 

regulated navigation area and may only 

pass (meet or overtake) another vessel 

outside of the regulated navigation area; 

(3) 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 (4) all up-bound and downbound 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. The 

Army Corps has informed the Coast 

Guard that the Army Corps will 

continue to contract bow boat assistance 

for barge tows containing one or more 

red flag barges through the remainder of 

the current fiscal year (i.e., through 

September 30, 2009). The Army Corps 

has informed the Coast Guard that it 

will request funds for bow boat 

assistance in its fiscal year 2010 budget 

request. However, because of the federal 

budget process, there is currently no 

way to determine if those funds will be 

appropriated. In the event Army Corps 

funding would cease, operators of tows 

containing one or more red flag barges 

that need to transit through the 

regulated navigation area would incur 

the cost of bow boat assistance. 

Operators of tows containing one or 

more red flag barges must notify the 

bow boat contractor at least two hours 

prior to the need for assistance. The tow 

operator must then remain in contact 

with the contractor after the initial call 

for bow boat assistance and advise the 

contractor of any delays. 

Red flag barges are barges certificated 

to carry, in bulk, any hazardous material 

as defined in 46 CFR 150.115. Currently, 

46 CFR 150.115 defines hazardous 

material as: 

(a) A flammable liquid as defined in 

46 CFR 30.10–22 or a combustible 

liquid as defined in 46 CFR 30.10–15; 

(b) A material listed in Table 151.05, 

Table 1 of part 153, or Table 4 of part 

154 of Title 46, CFR; or 

(c) A liquid, liquefied gas, or 

compressed gas listed in 49 CFR 

172.101. 

This rule proposes 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 

0.52 miles north east of Romeo Road 

Bridge). Within this smaller area, this 

rule proposes the prohibition of vessel 

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 

Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Proposed Rules 24725 

located approximately 0.52 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 0.52 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 0.52 

miles north east of Romeo Road Bridge). 

The rule also proposes that all persons 

on open decks of a vessel engaged in 

commercial service must 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 0.52 miles north 

east of Romeo Road Bridge). All persons 

on recreational vessels that are 

propelled or controlled by machinery, 

sails, oars, paddles, poles or another 

vessel must wear the Coast Guard 

approved personal flotation device 

(PFD) that is required to be onboard by 

33 CFR Part 175, while on the waters 

between the Romeo Road Bridge 

(approximate mile marker 296.18) and 

mile marker 296.7 (aerial pipeline 

located approximately 0.52 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 Army Corps. 

Deviation from this rule would be 

prohibited unless specifically 

authorized by the Commander, Ninth 

Coast Guard District, or his designated 

representatives. The Commander, Ninth 

Coast Guard District, will designate 

Captain of the Port Lake Michigan and 

Commanding Officer, Marine Safety 

Unit Chicago, as his designated 

representatives for the purposes of the 

proposed regulated navigation area. 

A safety zone would be enforced 

during tests or other periods of time that 

Barrier IIA is operated at voltages higher 

than one volt per inch. This proposed 

safety zone, which would encompass 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 0.52 miles north east of 

Romeo Road Bridge), would 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 

would cause notice of enforcement or 

suspension of enforcement of this safety 

zone to be made by all appropriate 

means to effect the widest publicity 

among the affected segments of the 

public. Such means of notification will 

include, but will not be limited to, 

Broadcast Notice to Mariners and Local 

Notice to Mariners. The Captain of the 

Port Lake Michigan would 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 may 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. 

Regulatory Planning and Review 

This proposed 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. 

Nevertheless, we have prepared a 

preliminary Regulatory Analysis of 

potential costs and benefits which is 

available in the docket where indicated 

under the ADDRESSES section of this 

preamble. A summary of the analysis 

follows: 

This proposed rule would mitigate 

safety risks associated with the 

electrical fish barrier system in the 

Chicago Sanitary and Ship Canal near 

Romeoville, Illinois. The Army Corps 

operates and maintains the fish barrier. 

Navigational and operational 

restrictions are necessary for all vessels 

transiting through the navigable waters 

located adjacent to and over the barriers 

in order to mitigate safety risks. 

The proposed rule would establish a 

permanent regulated navigation area for 

navigable waters adjacent to and over 

the electrical fish barrier. The 

rulemaking would also require certain 

provisions while transiting the regulated 

navigation area, including bow boat 

assistance for tows with red flag barges. 

Other proposed requirements of this 

rulemaking clarify navigation 

requirements that are normal industry 

practice (e.g., commercial tows using 

wire ropes) or have been in existence 

since 2002 as a result of the Army 

Corps’ development, operation, and 

maintenance of the electrical fish 

barrier. See the ‘‘Background and 

Purpose’’ and ‘‘Discussion of Proposed 

rule’’ sections for additional details on 

the requirements. 

This proposed rule would affect 

traffic transiting over the electrical fish 

barrier and surrounding waters. The 

Army Corps maintains data about the 

commercial vessels using the Lockport 

Lock and Dam, which provides access to 

the proposed regulated navigation area. 

During 2007, the commercial traffic 

through the Lockport Lock consisted of 

147 towing vessels and 13,411 barges. 

Of those, 100 towing vessels and 2,246 

barges were handling red flag cargo. 

There were 983 lockages involving red 

flag barges in 2007. 

The potential cost associated with this 

proposed rule would be for bow boat 

assistance. The Army Corps currently 

covers this cost through contract 

funding. In the event that such funding 

would cease, operators needing to 

transit the regulated navigation area 

with one or more red flag barges would 

incur a cost of approximately $850 per 

one-way transit (i.e., based on current 

Army Corps funding estimates). 

If bow boat assistance funding were to 

cease, we estimate the undiscounted 

annual recurring cost to industry to be 

$835,550 (i.e., 983 potential red flag 

transits × $850 for bow boat assistance 

fee). Based on this potential annual cost, 

we estimate the total present value 10- 

year (2010–2019) cost to industry of this 

proposed rule to be approximately $5.9 

million at a seven percent discount rate 

and $7.1 million at a three percent 

discount rate. 

We expect this proposed rule would 

mitigate the marine safety risks as a 

result of the permanent operation and 

maintenance of the electrical fish 

barriers. This rulemaking would also 

allow commerce to continue through the 

waters adjacent to or over these barriers. 

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. 

24726 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Proposed Rules 

An Initial Regulatory Flexibility 

Analysis (IRFA) discussing the impact 

of this proposed rule on small entities 

is available in the docket where 

indicated under the ‘‘Public 

Participation and Request for 

Comments’’ section of this preamble. 

From our analysis, we found the 

proposed rule would affect an estimated 

23 entities, of which 10 are considered 

small entities according to SBA size 

standards. If operators incur the direct 

cost of bow boat assistance, we estimate 

five (or fifty percent) of the affected 

small entities would incur a cost impact 

of less than or equal to one percent of 

revenue and eight (or eighty percent) of 

the affected small entities would incur 

a cost impact of less than or equal to 

three percent of revenue. 

At this time, the Coast Guard certifies 

under 5 U.S.C. 605(b) that this proposed 

rule would not have a significant 

economic impact on a substantial 

number of small entities. If you think 

that your business, organization, or 

governmental jurisdiction qualifies as a 

small entity and that this rule would 

have a significant economic impact on 

it, please submit a comment to the 

docket as detailed under ADDRESSES. In 

your comment explain why, how, and to 

what degree you think this proposed 

rule would have an economic impact on 

you. 

Assistance for Small Entities 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

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

we want to assist small entities in 

understanding the rule so that they may 

better evaluate its effects on them and 

participate in the rulemaking. If the rule 

would affect your small business, 

organization, or governmental 

jurisdiction and you have questions 

concerning its provisions or options for 

compliance, please contact LT Ann 

Henkelman, Waterways Management 

Branch, Ninth Coast Guard District, 

1240 East Ninth Street, Cleveland, OH 

44199; 216–902–6288. The Coast Guard 

will not retaliate against small entities 

that question or complain about this 

rule or any policy or action of the Coast 

Guard. 

Collection of Information 

This proposed rule would call 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 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 proposed 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 would not result in 

such 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 concern 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 

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 

procedure; and related management 

system practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This proposed rule does not use 

technical standards. Therefore, we did 

not consider the use of voluntary 

consensus standards. 

Environment 

We have analyzed this proposed 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 made a preliminary determination 

that this action is one of a category of 

actions which do not individually or 

cumulatively have a 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 

Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Proposed Rules 24727 

establishing, disestablishing, or 

changing regulated navigation areas and 

security or safety zones. A preliminary 

‘‘Environmental Analysis Check List’’ 

supporting this determination is 

available in the docket where indicated 

under the ‘‘Public Participation and 

Request for Comments’’ section of this 

preamble. We seek any comments or 

information that may lead to discovery 

of a significant environmental impact 

from this proposed rule. 

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 3306, 3703 and Chapter 701; 50 

U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04– 

6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; 

Department of Homeland Security Delegation 

No. 0170.1. 

§ 165.923 [Removed] 

2. Remove § 165.923. 

3. Add § 165.924 to read as follows: 

§ 165.924 Regulated Navigation Area and 

Safety Zone, Chicago Sanitary and Ship 

Canal, Romeoville, IL 

(a) Regulated Navigation Area. The 

following is a Regulated Navigation 

Area: All waters of the Chicago Sanitary 

and Ship Canal, Romeoville, IL, located 

between mile marker 295.0 

(approximately 1.1 miles south of the 

Romeo Road Bridge) and mile marker 

297.5 (approximately 1.3 miles 

northeast of the Romeo Road Bridge). 

(1) Definitions. The following 

definitions apply to this section: 

Bow boat means a towing vessel 

capable of providing positive control of 

the bow of a tow containing one or more 

barges, while transiting the regulated 

navigation area. The bow boat must be 

capable of preventing a tow containing 

one or more barges from coming into 

contact with the shore and other moored 

vessels. 

Designated representatives means the 

Captain of the Port Lake Michigan and 

Commanding Officer, Marine Safety 

Unit Chicago. 

Hazardous material means any 

material as defined in 46 CFR 150.115. 

On-scene representative means any 

Coast Guard commissioned, warrant or 

petty officer who has been designated 

by the Captain of the Port Lake 

Michigan to act on his behalf. 

Red flag barge means any barge 

certificated to carry any hazardous 

material in bulk. 

(2) 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. Vessels 

engaged in commercial service must 

work out passing arrangements prior to 

entering the regulated navigation area 

and may only pass (meet or overtake) 

another vessel outside of the regulated 

navigation area. 

(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 0.52 

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 0.52 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 0.52 

miles north east of Romeo Road Bridge). 

(vii) All persons on open decks of a 

vessel engaged in commercial service 

must wear a Coast Guard approved Type 

I personal flotation device (PFD) while 

in the waters between the Romeo Road 

Bridge (approximate mile marker 

296.18) and mile marker 296.7 (aerial 

pipeline located approximately 0.52 

miles north east of Romeo Road Bridge). 

All persons on recreational vessels that 

are propelled or controlled by 

machinery, sails, oars, paddles, poles or 

another vessel must wear the Coast 

Guard approved PFD that is required to 

be onboard by 33 CFR Part 175, while 

on the waters between the Romeo Road 

Bridge (approximate mile marker 

296.18) and mile marker 296.7 (aerial 

pipeline located approximately 0.52 

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 0.52 

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 

0.52 miles north east of Romeo Road 

Bridge). 

(3) 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. 

(4) 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. 

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

is a 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 0.52 miles north east of 

Romeo Road Bridge). 

(2) Notice of enforcement or 

suspension of enforcement. The Captain 

of the Port Lake Michigan will enforce 

the safety zone established by this 

section only upon notice. Captain of the 

Port Lake Michigan will cause notice of 

the 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 issue a 

Broadcast Notice to Mariners and Local 

Notice to Mariners notifying the public 

when enforcement of these safety zones 

is suspended. 

24728 Federal Register / Vol. 74, No. 99 / Tuesday, May 26, 2009 / Proposed Rules 

(3) Regulations. (i) In accordance with 

the general regulations in § 165.23 of 

this part, entry into, transiting, or 

anchoring within this safety zone is 

prohibited unless authorized by the 

Captain of the Port Lake Michigan, or 

his on-scene representative. 

(ii) This safety zone is closed to all 

vessel traffic, except as may be 

permitted by the Captain of the Port 

Lake Michigan or his on-scene 

representative. 

(iii) The on-scene representative of 

the Captain of the Port Lake Michigan 

may be aboard either a Coast Guard or 

Coast Guard Auxiliary vessel. The 

Captain of the Port Lake Michigan or his 

on-scene representative may be 

contacted via VHF Channel 16. 

(4) Vessel operators desiring to enter 

or operate within the safety zone shall 

contact the Captain of the Port Lake 

Michigan or his on-scene representative 

to obtain permission to do so. Vessel 

operators given permission to enter or 

operate in the safety zone must comply 

with all directions given to them by the 

Captain of the Port Lake Michigan or his 

on-scene representative. 

Dated: May 12, 2009. 

D.R. Callahan, 

Captain, U.S. Coast Guard, Commander, 

Ninth Coast Guard District Acting. 

[FR Doc. E9–12179 Filed 5–22–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF EDUCATION 

34 CFR Chapter VI 

Negotiated Rulemaking Committees; 

Establishment 

AGENCY: Office of Postsecondary 

Education, Department of Education. 

ACTION: Establishment of negotiated 

rulemaking committees; and notice of 

public hearings. 

SUMMARY: We announce our intention to 

establish one or more negotiated 

rulemaking committees to prepare 

proposed regulations under Title IV of 

the Higher Education Act of 1965, as 

amended (HEA). The committees will 

include representatives of organizations 

or groups with interests that are 

significantly affected by the subject 

matter of the proposed regulations. We 

also announce three public hearings, at 

which interested parties may suggest 

additional issues that should be 

considered for action by the negotiating 

committees. In addition, for anyone 

unable to attend a public hearing, we 

announce that the Department will 

accept written comments. 

The Department will also be 

conducting forums after each of the 

three hearings to discuss (1) how 

changes in the Department’s financial 

aid communications and processes 

(including the Free Application for 

Federal Student Aid (FAFSA)) could 

improve college planning, preparation 

and access, and (2) how best to leverage 

Federal postsecondary programs to 

foster student educational persistence 

and degree attainment. 

DATES: The dates, times, and locations 

of the public hearings are listed under 

the SUPPLEMENTARY INFORMATION section 

of this notice. We must receive written 

comments suggesting issues that should 

be considered for action by the 

negotiating committees on or before 

June 23, 2009. 

ADDRESSES: Please send written 

comments to Wendy Macias, U.S. 

Department of Education, 1990 K Street, 

NW., Room 8017, Washington, DC 

20006, or by fax to Wendy Macias at 

(202) 502–7874. You may also e-mail 

your comments to negreg09@ed.gov. 

FOR FURTHER INFORMATION CONTACT: For 

information about the public hearings 

and forums, go to http://www.ed.gov/ 

policy/highered/reg/hearulemaking/ 

2009/negreg-summerfall.html or 

contact: Mary Miller, U.S. Department 

of Education, 1990 K Street, NW., Room 

8066, Washington, DC 20006. 

Telephone: (202) 502–7824. You may 

also e-mail your questions about the 

public hearings to: Mary.Miller@ed.gov. 

For information about negotiated 

rulemaking in general, see The 

Negotiated Rulemaking Process for Title 

IV Regulations, Frequently Asked 

Questions at http://www.ed.gov/policy/ 

highered/reg/hearulemaking/hea08/negreg-faq.html. For further information 

about negotiated rulemaking contact: 

Wendy Macias, U.S. Department of 

Education, 1990 K Street, NW., Room 

8017, Washington, DC 20006. 

Telephone (202) 502–7526. You may 

also e-mail your questions about 

negotiated rulemaking to: 

Wendy.Macias@ed.gov. 

If you use a telecommunications 

device for the deaf (TDD), call the 

Federal Relay Service (FRS), toll free, at 

1–800–877–8339. 

Individuals with disabilities can 

obtain this document in an accessible 

format (e.g., braille, large print, 

audiotape, or computer diskette) by 

contacting the person responsible for 

information about the public hearings. 

SUPPLEMENTARY INFORMATION: Section 

492 of the HEA requires that, before 

publishing any proposed regulations to 

implement programs authorized under 

Title IV of the HEA, the Secretary obtain 

public involvement in the development 

of the proposed regulations. After 

obtaining advice and recommendations 

from the public, the Secretary uses a 

negotiated rulemaking process to 

develop the proposed regulations. 

We announce our intent to develop 

proposed regulations by following the 

negotiated rulemaking procedures in 

section 492 of the HEA. We intend to 

select participants for the negotiated 

rulemaking committees from nominees 

of the organizations and groups that 

represent the interests significantly 

affected by the proposed regulations. To 

the extent possible, we will select, from 

the nominees, individual negotiators 

who reflect the diversity among program 

participants, in accordance with section 

492(b)(1) of the HEA. 

Regulatory Issues 

We intend to convene one committee 

to develop proposed regulations 

governing foreign schools, including the 

implementation of the changes made to 

the HEA by the Higher Education 

Opportunity Act (HEOA), Public Law 

110–315, that affect foreign schools. 

We intend to convene at least one 

other committee to develop proposed 

regulations to maintain or improve 

program integrity in the Title IV, HEA 

programs, relating to topics such as the 

following: 

• Satisfactory academic progress. 

• Incentive compensation paid by 

institutions to persons or entities 

engaged in student recruiting or 

admission activities. 

• Gainful employment in a 

recognized occupation. 

• State authorization as a component 

of institutional eligibility. 

• Definition of a credit hour, for 

purposes of determining program 

eligibility status, particularly in the 

context of awarding Pell Grants. 

• Verification of information 

included on student aid applications. 

• Definition of a high school diploma 

as a condition of receiving Federal 

student aid. 

After a complete review of the public 

comments presented at the public 

hearings and from the written 

submissions, we will publish a 

subsequent notice (or notices) 

announcing the specific subject areas for 

which we intend to establish negotiated 

rulemaking committees, and a request 

for nominations for individual 

negotiators for those committees who 

represent the interests significantly 

affected by the proposed regulations. 

Public Hearings 

We will hold three public hearings for 

interested parties to discuss the agenda