[Federal Register Volume 74, Number 236 (Thursday, December 10, 2009)]
[Rules and Regulations]
[Pages 65439-65442]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-29417]



[[Page 65439]]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-1052]
RIN 1625-AA00; 1625-AA87


Safety and Security Zone, 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 temporary safety and 
security zone on the Chicago Sanitary and Ship Canal (CSSC) near 
Romeoville, IL. This temporary final rule is intended to restrict all 
vessels from transiting the navigable waters of the CSSC. The safety 
and security zone is necessary to protect the waters, waterway users 
and vessels from hazards associated with the U.S. Army Corps of 
Engineers (USACE) electrical dispersal barrier and for the preparation 
and safe application of a fish toxicant during a period of time when 
the barrier will be disabled to conduct maintenance.

DATES: Effective Date: In this rule, Sec.  165.923 is suspended and a 
new temporary section, Sec.  165.T09-1052, is added in the CFR 
effective December 10, 2009 until 5 p.m. on December 18, 2009. This 
rule is effective with actual notice for purposes of enforcement from 5 
p.m. on November 30, 2009 to 5 p.m. on December 18, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-1052 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-1052 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) because the emergent planning and execution of maintenance to 
Barrier IIA by the USACE and the preventative application of the fish 
toxicant (rotenone), under the direction of the Illinois Department of 
Natural Resources (IDNR) and the federal coordination of the U.S. 
Environmental Protection Agency (EPA) resulted in good cause for not 
publishing an NPRM as there was insufficient time for proper notice. 
During IDNR's deployment of rotenone, the Coast Guard will enact a 
safety and security zone to provide for the safety and security of the 
waters, the waterway facilities and the vessels operating between the 
Lockport Lock and Dam (mile marker 291) and vicinity of the Ruby Street 
Bridge (mile marker 288.6).
    The application of rotenone to the CSSC will ensure Asian carp do 
not transit across the fish barrier when Barrier IIA is taken off line 
and Barrier I, which only operates at one volt per inch, is the sole 
prophylactic from preventing the Asian carp from entering the Great 
Lakes. Preparation of the CSSC before application of rotenone is 
essential in preventing the Asian carp from surviving the fish 
toxicant. IDNR reports indicate that vessels moored along the Canal 
wall could create pockets or eddies where the fish toxicant is not able 
to reach all of the Asian Carp necessitating the Captain of the Port 
(COTP) Sector Lake Michigan to order their immediate removal from the 
safety and security zone. Exceptions may possibly be granted upon the 
review of COTP Sector Lake Michigan.
    Rotenone has potential for adverse effects on humans. As such, 
delaying this rule would be contrary to the public interest of ensuring 
the safety and security of waterway users and vessels during the 
preparations, application and clean-up from the use of rotenone.
    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 and security 
risk to the waters, 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.
    In October of 2009, the USACE notified the Coast Guard that barrier 
IIA needed to be shut-down for required maintenance. As a result, the 
IDNR, in the coordination of the EPA, will apply rotenone to the CSSC 
to ensure Asian Carp do not transit through the CSSC while Barrier IIA 
is disabled. The Coast Guard's understanding is that the application of 
the rotenone will take approximately fifteen (15) hours followed by 
neutralizing and clean-up. The application, neutralizing and clean-up 
is expected to take a minimum of five days and a maximum of ten (10) 
days. For any questions related to the application of rotenone, please 
contact Mr. Bill Bolen, U.S. Environmental Protection Agency, Senior 
Advisor, Great Lakes National Program Office, 77 W. Jackson Blvd., 
Chicago, IL 60604, at (312) 353-6316.

[[Page 65440]]

    The timing of the decision to use rotenone during the maintenance 
did not provide an opportunity for full notice and comment period. 
Until on-scene preparations begin on December 2, 2009 for the 
application of rotenone, the Captain of the Port Sector Lake Michigan 
will make every effort to permit vessels to pass over the fish barrier 
while it is operating at the two volt per inch level. Once preparations 
begin on December 2, 2009, until clean-up is complete which at the 
earliest will be December 7 but may last until December 18 no vessels, 
except those being used for the rotenone application and clean-up, will 
be permitted to enter or remain in the safety and security zone. As 
areas become neutralized and the necessary clean up action has been 
completed, the Captain of the Port Sector Lake Michigan will re-open 
certain portions of the waterway in an effort to minimize commerce 
disruption.
    Prior to December 2, 2009, vessels engaging in normal operations 
are permitted to transit through the safety and security zone. After 
December 2, 2009, all vessels desiring to enter the safety and security 
zone must receive permission from the Captain of the Port Sector Lake 
Michigan to do so and must follow all orders from the Captain of the 
Port Sector Lake Michigan or her designated on-scene representative 
while in the zone. As soon as the rotenone clean-up efforts are 
complete, the Captain of the Port Sector Lake Michigan will notify 
waterway users by all appropriate means to effect the widest publicity 
among the affected segments of the public that vessels engaged in 
normal operations are again being permitted to transit through the 
security and safety zone.
    The Captain of the Port Sector Lake Michigan maintains a live radio 
watch on VHF-FM Channel 16 and 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 
Sector Lake Michigan via the Coast Guard Sector Lake Michigan Command 
Center at 414-747-7182.

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 
in the initial stages; Barrier IIB will augment the capabilities of 
Barriers I and IIA potentially allowing for maintenance operations 
without the use of rotenone.
    Until on-scene preparations begin on December 2, 2009 for the 
application of rotenone, the Captain of the Port Sector Lake Michigan 
will make every effort to permit vessels to conduct normal operations. 
Once preparations begin on December 2, 2009, until clean-up is complete 
which at the earliest will be December 10 but may last until December 
14, no vessels except those being used for the rotenone application and 
clean-up will be permitted to enter or remain in the safety and 
security zone. When clean-up is complete, the Captain of the Port 
Sector Lake Michigan will cause notice that vessels engaged in normal 
operations may transit the safety and security zone, and will do so by 
all appropriate means to affect the widest publicity among the affected 
segments of the public.

Discussion of Rule

    This rule suspends 33 CFR 165.923 until 5 p.m. on December 18, 
2009. This rule places a safety and security zone on all waters of the 
Chicago Sanitary Ship and Canal from mile-marker 291 (Lockport Lock and 
Dam) to mile-marker 288.6.
    The Coast Guard has deemed this safety and security zone necessary 
from November 30, 2009, until December 18, 2009 to the protect the 
waters, commercial vessels and recreational boaters who transit the 
area during the preparation, application and clean-up of the rotenone 
application.
    Until 8 a.m. on December 2, 2009, vessels engaged in commercial 
service, as defined in 46 U.S.C. 2101(5), are permitted to transit 
through the safety and security zone. Vessels may not moor or lay up in 
the safety and security zone unless preparing to, or engaging in, 
loading or unloading operations. Any vessel not actively preparing to, 
or currently engaged in, loading and unloading operations must ask for 
permission for the Captain of the Port to remain in the safety and 
security zone.
    Beginning at 8 a.m. on December 2, 2009 preparations will begin for 
the application of rotenone at which time the Captain of the Port 
Sector Lake Michigan will prohibit all vessels, except those engaged in 
rotenone application operations or fish carcass removal, from 
transiting the safety and security zone. Vessels desiring to transit 
must request permission from the Captain of the Port Sector Lake 
Michigan or her on-scene representative.
    The Captain of the Port Sector Lake Michigan will cause notice of 
the Coast Guard again permitting vessels to transit this safety and 
security zone by all appropriate means to effect 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. In addition, Captain of the Port Sector 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 and security zones by contacting the Captain 
of the Port Sector Lake Michigan via the Coast Guard Sector Lake 
Michigan Command Center at 414-747-7182.

Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on thirteen (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

[[Page 65441]]

and Ship Canal will be permitted to enter the safety zone under certain 
conditions; and, (2) every effort will be made to reduce the closure 
time of the canal following the shutdown of Barrier IIA for maintenance 
and rotenone application.
    Because these safety and security zones 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-2009-1052 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.

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 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

[[Page 65442]]

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 a security or safety 
zone. An environmental analysis checklist and a categorical exclusion 
determination are available in the docket where indicated under 
ADDRESSES. The Coast Guard's environmental responsibilities extend only 
to the creation of a safety and security zone and do not address the 
application of rotenone. Any questions regarding the rotenone operation 
should be addressed to Mr. Bill Bolen, U.S. Environmental Protection 
Agency, Senior Advisor, Great Lakes National Program Office, 77 W. 
Jackson Blvd., Chicago, IL 60604, at (312) 353-6316.

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; 
Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security 
Delegation No. 0170.1.


Sec.  165.923  [Suspended]

0
2. Sec.  165.923 is suspended from December 10, 2009 until 5 p.m. on 
December 18, 2009.

0
3. A new temporary Sec.  165.T09-1052 is added from December 10, 2009 
until 5 p.m. on December 18, 2009 as follows:


Sec.  165.T09-1052  Safety and Security Zone, Chicago Sanitary and Ship 
Canal, Romeoville, IL.

    (a) Ruby Street Bridge to Lockport Lock Safety and Security Zone.
    (1) The following area is a temporary safety and security zone: All 
waters of the Chicago Sanitary and Ship Canal located between mile 
marker 291.0 (Lockport Lock and Dam) and mile marker 288.6 
(approximately 500 feet south of the Ruby Street Bridge).
    (2) Enforcement Period. The safety and security zone will be 
enforced from 5 p.m. on November 30, 2009, until 5 p.m. on December 18, 
2009. Beginning December 1, 2009, the Coast Guard will use actual 
notice to enforce this safety and security zone until this rule is 
published in the Federal Register.
    (3) Regulations.
    (i) In accordance with the general regulations in Sec.  165.23 of 
this part, entry into, transiting, or anchoring within this safety zone 
is prohibited unless authorized by the Captain of the Port Sector Lake 
Michigan, or her representative.
    (ii) The ``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 Sector Lake Michigan to act on her behalf. The 
representative of the Captain of the Port Sector 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, 
loudhailer, or by phone. The Captain of the Port Sector Lake Michigan 
or her representative may be contacted via VHF-FM radio Channel 16 or 
the Coast Guard Sector Lake Michigan Command Center at 414-747-7182.
    (iii) Vessel operators desiring to enter or operate within the 
safety and security zone must comply with the provisions of paragraph 
(b)(4)(iv) of this section or contact the Captain of the Port Sector 
Lake Michigan or her representative to obtain permission to do so. 
Vessel operators given permission to enter or operate in the safety and 
security zone must comply with all directions given to them by the 
Captain of the Port Sector Lake Michigan or her representative.
    (iv) Until 8 a.m. on December 2, 2009, vessels are permitted to 
transit the safety and security zone.
    (v) Starting at 8 a.m. on December 2, 2009, this safety and 
security zone is closed to all vessel traffic, except as may be 
permitted by the Captain of the Port Sector Lake Michigan or her 
representative. As soon as clean-up efforts from the rotenone 
application are complete, the Captain of the Port will cause notice of 
the safety and security zone being open to vessel transits, by all 
appropriate means to effect the widest publicity among the affected 
segments of the public. Such means of notification include but are not 
limited to, Broadcast Notice to Mariners or Local Notice to Mariners.

    Dated: November 27, 2009.
P.V. Neffenger,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. E9-29417 Filed 12-9-09; 8:45 am]
BILLING CODE 9110-04-P