[Federal Register Volume 75, Number 122 (Friday, June 25, 2010)]
[Rules and Regulations]
[Pages 36288-36291]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-15398]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2009-1080]
RIN 1625-AA00, 1625-AA11
Amended Safety Zone and Regulated Navigation Area, Chicago
Sanitary and Ship Canal, Romeoville, IL
AGENCY: Coast Guard, DHS.
ACTION: Temporary interim rule with request for comments.
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SUMMARY: The Coast Guard is revising its safety zone and Regulated
Navigation Area (RNA) on the Chicago Sanitary and Ship Canal (CSSC)
near Romeoville, IL. This revised temporary interim rule reduces the
areas covered by the safety zone and RNA, and places additional
restrictions on vessels that may transit the RNA.
DATES: Effective Date: Temporary section, Sec. 165.T09-1080, is
effective June 25, 2010 until 5 p.m. on December 1, 2010. This revision
is enforceable with actual notice beginning upon date of signature.
Comment Period: Comments and related material must reach the Docket
Management Facility on or before August 24, 2010.
ADDRESSES: You may submit comments identified by docket number USCG-
2009-1080 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.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call Commander 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:
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-2009-1080), 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 telephone 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-2009-1080'' 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 8[frac12] 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 this 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-2009-1080 in the Docket ID box, press Enter, and
then click on the item in the Docket ID column. You may also visit
either 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 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 using one of the four methods specified under
ADDRESSES. Please
[[Page 36289]]
explain why you believe a public meeting 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.
Regulatory Information
The Coast Guard is issuing this temporary interim 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.'' For the reasons discussed below,
under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists
for not publishing a notice of proposed rulemaking (NPRM) with respect
to this rule based upon data which indicates that Asian carp are much
closer to the Great Lakes waterway system than originally thought. The
possibility exists that vessels will transport Asian carp eggs,
gametes, or juvenile fish safely through the electrical dispersal
barrier in water attained south of the fish barrier that is then
transported and discharged on the other side of the barrier. The Asian
carp are the subject of an ongoing multi-agency study aimed at
preventing their introduction into the Great Lakes. The proposed
temporary safety zone and RNA will allow that multi-agency effort to
progress towards its goal of protecting people, vessels, and the
environment from the hazards associated with the possible introduction
of invasive species such as Asian carp into the Great Lakes.
As such, the USCG must take immediate steps in order to prevent
possible introduction of Asian carp before the ongoing effort can be
completed. Therefore, it would be against the public interest to delay
the issuing of this rule. Additionally, for the same reasons, the Coast
Guard finds that good cause exists for making this rule effective less
than 30 days after publication in the Federal Register under 5 U.S.C.
553(d)(3).
For additional discussion of the good cause surrounding the
issuance of the safety zone and RNA being revised by this rule, refer
to the issuance of the initial temporary final rule on January 6, 2010
(75 FR 754, 755).
Background and Purpose
The discussion that follows was published previously in the initial
temporary final rule on January 6, 2010 (75 FR 754).
The Nonindigenous Aquatic Nuisance Prevention and Control Act of
1990, as amended by the National Invasive Species Act of 1996,
authorized the United States Army Corps of Engineers (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 (CSSC).
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 1300 feet downstream of the Barrier I. The potential field strength
for Barrier IIA is 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 2009, 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.
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 Barrier I. During subsequent USACE safety testing,
sparking was observed at points where metal-to-metal contact occurred
between two barges in the barrier field.
The electric current in the water also poses a safety risk to
commercial and recreational boaters transiting the area. The Navy
Experimental Diving Unit (NEDU) was tasked with researching how the
electric current from the barriers would affect a human body if
immersed in the water. The NEDU final report concluded that the
possible effects to a human body if immersed in the water include
paralysis of body muscles, inability to breathe, and ventricular
fibrillation.
A Safety Work Group facilitated by the Coast Guard and in
partnership with the USACE and industry initially met in February 2008
and focused on three goals: (1) Education and public outreach, (2)
keeping people out of the water, and (3) egress/rescue efforts. The
Safety Work Group has regularly been attended by eleven stakeholders,
including industry representatives such as the American Waterways
Operators and Illinois River Carriers Association, the Army Corps of
Engineers Chicago District, Coast Guard Marine Safety Unit Chicago,
Coast Guard Sector Lake Michigan/Captain of the Port Lake Michigan, and
the Ninth Coast Guard District.
Based on the safety hazards associated with electric current
flowing through navigable waterways and the uncertainty of the effects
of higher voltage on people and vessels that pass over and adjacent to
the barriers, the Coast Guard is implementing operational restrictions,
via an RNA, on vessels until proper testing and analysis of such
testing can be completed by the USACE. The Coast Guard appreciates the
commercial significance of this waterway and will work closely with the
USACE to reduce operational restrictions as soon as possible; however,
it is imperative that the RNA be immediately enacted to avoid loss of
life.
On December 2, 2009, rotenone, a fish toxicant, was applied to
approximately six miles of the CSSC while barrier maintenance was
conducted to ensure no fish were able to transit the barrier. One
Silver Carp was found in the area immediately south of the barrier.
Similarly e-dna was detected north of the barrier, in an area of the
Cal Sag Channel immediately below the O'Brien Locks and at the
confluence of the Cal Sag Channel and the CSSC. This e-dna indicates
the potential presence of Carp, but in the subsequent fishing
operations, we were not able to determine a number or mass of the fish
present.
Affected parties are reminded that the USACE may again raise the
operating parameters of the fish barrier in response to ongoing tests
regarding the effectiveness of the barrier on the Asian carp. In
addition, when USACE activates barrier IIB, additional testing will be
necessary to ensure the safety of vessels. If this occurs, it is
possible that fewer vessels will be given permission to enter the RNA
and safety zone until further safety testing and analysis can be
completed and current timelines for a final rule will be extended.
Discussion of Rule
This temporary interim rule amends 33 CFR 165.T09-1080, issued on
January 6, 2010 (75 FR 759), which established a safety zone and RNA on
the waters of the CSSC. The purpose of this rule is to change the area
sizes of the safety zone and RNA, and to place additional restrictions
on vessels that may transit the RNA. This rule amends
[[Page 36290]]
33 CFR 165.T09-1080(a)(1), which established the area of the safety
zone, to read ``450 feet south of the Romeo Road Bridge'', instead of
``958 feet south of the Romeo Road Bridge''. This rule amends Sec.
165.T09-1080 (b)(1), which established the size of the RNA, to reduce
the size of the RNA from mile markers 295.0-297.5 to mile markers
295.5-297.2. This rule amends Sec. 165.T09-1080 (b)(2)(ii), which
listed restrictions on vessels that may transit the RNA, by adding two
more restrictions on vessels that may transit the RNA. Vessels must be
greater than 20 feet to transit the RNA. Additionally, personal
watercraft, motorized and non-motorized, of any kind (e.g. jet skis,
wave runners, kayaks etc.) will not be permitted to transit the RNA.
All other provisions of the safety zone and RNA remain unchanged.
Regulatory Analyses
We developed this temporary interim rule after considering numerous
statutes and executive orders related to rulemaking. Below we summarize
our analyses based on 13 of these statutes or executive orders.
Regulatory Planning and Review
This temporary interim 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.
Because this regulated navigation area and safety zone must be
implemented immediately without a full notice and comment period, the
full economic impact of this rule is difficult to determine at this
time, and that the revisions being made by this rule are minimal. What
follows is the regulatory impact statement that published on January 6,
2010, when this temporary interim rule was first established:
This rule will affect commercial traffic transiting the electrical
dispersal fish barrier system and surrounding waters. The USACE
maintains data about the commercial vessels using the Lockport Lock and
Dam, which provides access to the proposed RNA. According to USACE
data, the commercial traffic through the Lockport Lock consisted of 147
towing vessels and 13,411 barges during 2007. Of those, 96 towing
vessels and 2,246 barges were handling red flag cargo (i.e., those
carrying hazardous, flammable, or combustible material in bulk).
Recreational vessels will also be affected under this rule.
According to USACE data, recreational vessels made up 66 percent of the
usage of the Lockport Lock and Dam in 2007. Operation and maintenance
of the USACE fish barrier will continue to affect recreational vessels
as they have in the past. The majority of these vessels will still be
able to transit the RNA under this rule.
The potential cost associated with this rule will include bow boat
assistance for red flag vessels and the potential cost associated with
possible delays or inability to transit the RNA for those vessels
transporting non-potable water attained on one side of the barrier for
discharge on the other.
Operators have been using bow boat assistance, under prior
temporary rules, to mitigate the risk posed by the electrical dispersal
fish barrier system operated by USACE. Based on information from the
Ninth Coast Guard District, several tow boat operators are already
refraining from permitting the discharge of non-potable water attained
on one side of the barrier to the other.
We expect some provisions in this rule will not result in
additional costs. These include loitering, mooring and PFD
requirements. Similar to prior temporary rules, vessels are prohibited
from mooring or loitering in the RNA and all personnel in the RNA on
open decks are required to wear a Coast Guard approved Type I personal
flotation device. Most commercial and recreational operators will have
required flotation devices on board as a result of other requirements
and common safe boating practices. Based on the past temporary rules,
we observed no information and received no data to confirm there were
additional costs as a result of these provisions.
In addition, the 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 CSSC
will be permitted to enter the regulated navigation area and safety
zone under certain conditions. Those vessels that will not be permitted
to pass through the barrier may be permitted, on a case by case basis,
to pass via a dead ship tow by a commercial vessel that is able to
transit.
We expect the benefits of this rule will mitigate marine safety
risks as a result of the operation and maintenance of the fish barriers
by the USACE. This rule will allow commerce to continue through the
waters adjacent to and over these barriers. This rule will also
mitigate the possibility of an Asian Carp introduction into Lake
Michigan, and the Great Lakes system, as a result of commerce through
the CSSC.
At this time, based on available information from past temporary
rules, we anticipate that this rule will not be economically
significant under Executive Order 12866 (i.e., have an annual effect on
the economy of $100 million or more). The Coast Guard urges interested
parties to submit comments that specifically address the economic
impacts of this temporary interim rule. Comments can be made online by
following the procedures outlined above in the ADDRESSES section.
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.
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).
[[Page 36291]]
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 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 temporary rule under Department of Homeland
Security Management Directive 023-01 and Commandant Instruction
M16475.lD, which guide the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that this action is one of the category of actions which
do not individually or cumulatively have significant effect on the
human environment. Therefore, this rule is categorically excluded,
under section 2.B.2 Figure 2-1, paragraph (34)(g), as well as paragraph
(27) of the Instruction and neither an environmental assessment nor an
environmental impact statement is required. This rule involves the
establishing, disestablishing, or changing of regulated navigation
areas and security or safety zones. This temporary rule will assist the
aforementioned multi-agency effort to research and manage the possible
impact of the Asian carp on the Great Lakes. An environmental analysis
checklist and a categorical exclusion determination are available in
the docket where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and record
keeping 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.
0
2. In Sec. 165.T09-1080, revise paragraphs (a)(1) and (b)(1), and add
paragraphs (b)(2)(ii)(J) and (b)(2)(ii)(K) to read as follows:
Sec. 165.T09-1080 Safety Zone and Regulated Navigation Area, Chicago
Sanitary and Ship Canal, Romeoville, IL.
(a) * * *
(1) The following area is a temporary safety zone: All waters of
the Chicago Sanitary and Ship Canal, Romeoville, IL located between
mile marker 296.1 (approximately 450 feet south of the Romeo Road
Bridge and mile marker 296.7 (aerial pipeline located approximately
0.51 miles north east of Romeo Road Bridge).
* * * * *
(b) * * *
(1) The following is a regulated navigation area (RNA): All waters
of the Chicago Sanitary and Ship Canal, Romeoville, IL located between
mile marker 295.5 (approximately 3600 feet south of the Romeo Road
Bridge) and mile marker 297.2 (approximately 0.5 miles north of the
pipeline arch).
(2) * * *
(ii) * * *
(J) Vessels must be greater than twenty feet in length.
(K) Vessels must not be a personal watercraft of any kind (e.g. jet
skis, wave runners, kayaks, etc.).
* * * * *
Dated: June 15, 2010.
M. N. Parks,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2010-15398 Filed 6-24-10; 8:45 am]
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