[Federal Register Volume 75, Number 231 (Thursday, December 2, 2010)]
[Rules and Regulations]
[Pages 75145-75151]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30289]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 75, No. 231 / Thursday, December 2, 2010 /
Rules and Regulations
[[Page 75145]]
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG-2010-1054]
RIN 1625-AA11, 1625-AA00
Regulated Navigation Area, Chicago Sanitary and Ship Canal,
Romeoville, IL; Safety Zone, 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 establishing both a safety zone and a
Regulated Navigation Area (RNA) on the Chicago Sanitary and Ship Canal
(CSSC) near Romeoville, IL. This temporary interim rule places
navigational, environmental and operational restrictions on all vessels
transiting the navigable waters located adjacent to and over the U.S.
Army Corps of Engineers' (USACE) electrical dispersal fish barrier
system.
DATES: Effective Date: In this rule, Sec. 165.923 is suspended, and a
new temporary section, Sec. 165.T09-1054, is added in the CFR
effective 5 p.m. on December 1, 2010 until 5 p.m. on December 1, 2011.
This rule is effective with actual notice for purposes of enforcement
beginning at 5 p.m. on December 1, 2010 until 5 p.m. on December 1,
2011.
Comment Period: Comments and related material must reach the Docket
Management Facility on or before January 31, 2011.
ADDRESSES: You may submit comments identified by docket number USCG-
2010-1054 using any one of the following methods:
(1) Federal eRulemaking Portal: http:[sol][sol]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 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:
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:[sol][sol]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-2010-1054), 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:[sol][sol]www.regulations.gov, select the Advanced Docket Search
option on the right side of the screen, insert ``USCG-2010-1054'' 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\1/2\ by 11
inches, suitable for copying and electronic filing. If you submit them
by mail and would like to know that they reached the Facility, please
enclose a stamped, self-addressed postcard or envelope. We will
consider all comments and material received during the comment period
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:[sol][sol]www.regulations.gov, select the Advanced Docket Search
option on the right side of the screen, insert USCG-2010-1054 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 on or before February 1, 2011 using one of the four
methods specified under ADDRESSES. Please 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
This temporary interim rule essentially creates an extension of a
prior temporary interim rule with
[[Page 75146]]
request for comments published in the Federal Register on January 6,
2010 (75 FR 754). Comments were received under that temporary rule and
have been considered and addressed in this rulemaking. The comments
that were received and the Coast Guard's response are addressed below
in the Discussion of Rule section. The Coast Guard also renews its
requests for comments that will be considered when determining the
final rule.
For the reasons discussed below, 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 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. Therefore, 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).
RNA Good Cause Discussion
In 2002, the USACE energized a demonstration electrical dispersal
barrier located in the CSSC. 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 CSSC, than Barrier I. The USACE is currently in the process of
constructing and testing ``Barrier IIB'' which will operate alongside
Barrier IIA. Barrier IIB will also be capable of generating the four-
volts per inch field strength.
A comprehensive, independent analysis of Barrier IIA, conducted in
2008 by the USACE at the one-volt per inch level, found a serious risk
of injury or death to persons immersed in the water located adjacent to
and over the barrier. Additionally, sparking between barges transiting
the barrier (a risk to flammable cargoes) occurred at the one-volt per
inch level.
In the past, the Coast Guard advised the USACE that it has no
objection to the activation of Barrier IIA and Barrier I at a maximum
strength of one-volt per inch. Testing on commercial vessels transiting
the canal over the fish barrier was conducted at one volt per inch
indicating that although the barriers create risks to people and
vessels, those risks could be mitigated by following certain
procedures. These mitigation procedures for the barrier operating at
one volt per inch were implemented in a temporary interim rule
establishing an RNA and a safety zone that was published in the Federal
Register on February 9, 2009 (74 FR 6352), as well as an NPRM published
in the Federal Register on May 26, 2009 (74 FR 24722).
However, both of these rulemakings reflected the prior operating
parameters of the dispersal barriers and contemplated further testing
of the effects of higher voltages on commercial and recreational
vessels as well as people. After Barrier IIA was energized, the USACE
completed safety testing in consultation with the U.S. Coast Guard in
August of 2009, to test various configurations of commercial tugs and
barges as well as recreational vessels with non-conductive hulls
passing through the barriers at increased voltage and operating
parameters. Although testing and analysis of the risks to persons and
vessels have begun, such efforts are ongoing.
Once Barrier IIB is energized, additional testing must be
completed. In addition, the USACE is still in the process of
determining what the optimal operational configurations of the barriers
will be. Until all the barriers are operational, the strength and
configuration of the barrier are finalized by the USACE and all
necessary safety and operational testing is completed, the Coast Guard
is unable to predict what waterway safety restrictions will be
necessary in the vicinity of the electric dispersal barrier. As such,
the Coast Guard is unable to give the public advanced notice of the
final restrictions that will be necessary on the CSSC, but must take
this immediate, interim action in order to prevent injury to people as
well as damage to vessels and the waterway. Given the risks involved as
well as the uncertainty of the situation, it is contrary to the public
interest to delay the effective date of the RNA included in this rule.
Safety Zone Good Cause Discussion
In November 2009, the USACE made an announcement that it had
discovered environmental deoxyribonucleic acid (e-dna) from Asian carp
north of the fish barrier, indicating the potential that an unknown
amount of Asian carp may be living in the waterways north of the fish
barrier in the Cal-Sag Channel but south of the O'Brien Locks. Under 50
CFR Part 16, Asian carp are listed as an injurious species of fish and
as such are illegal for interstate transportation. A permit is required
to transport all viable eggs, gametes, as well as live Silver or Asian
carp. Historically, vessels have taken on water south of the barrier
and transported it across the barrier as bilge, ballast, or other non-
potable water. This practice is considered a possible bypass vector for
transporting Asian carp eggs or juvenile fish from south of the barrier
to north of the barrier. Although it not believed that Asian carp have
been transported into the Great Lakes via this entry method, immediate
action is needed to close down this possible bypass vector. In response
to public comments on the previous interim rule, there is no indication
that any particular type of vessel has transported Asian carp across
the barrier or that any type of vessel is a higher risk than others for
transporting Asian carp. For this reason, delaying the effective date
for the safety zone included in this temporary interim rule would be
contrary to the public interest.
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 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
[[Page 75147]]
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.
Construction of a third barrier (Barrier IIB) has commenced and is
ongoing. Barrier IIB will augment the capabilities of Barriers I and
IIA. Until all three barriers are functional at the same time and
testing is completed, the USACE is unable to determine what the final
operational configurations of the dispersal barrier will be. Until that
time, the necessary long-term safety and environmental restrictions
required for this portion of the CSSC cannot be determined.
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.
In addition to the USACE's electric dispersal barrier, rotenone, a
fish toxicant, has been applied to approximately six miles of the CSSC
while barrier maintenance was conducted to ensure no fish were able to
transit the barrier. As a result, evidence indicating the presence of
Asian carp, including one Silver carp south of the barrier, was found
in the general vicinity of the barrier. Although research efforts are
ongoing, researchers have not been able to determine a number or mass
of the Asian carp present either north or immediately south of the
barrier.
Affected parties are reminded that the USACE may, at any time,
permanently 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 the USACE permanently raises the voltage strength of the Barrier or
otherwise alters Barrier operations to create unacceptable risks to
waterway users, 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. Interested parties are urged to
provide comment on how a permanent closure of the CSSC at the affected
location would impact them.
Discussion of Rule
This temporary interim rule replaces 33 CFR 165.T09-1004, the last
temporary rule published to address risks associated with Barrier IIA
and the application of rotenone to the CSSC. This rule also suspends 33
CFR 165.923 until 5 p.m. on December 1, 2011. This rule places an RNA
on all waters located adjacent to, and over, the electrical dispersal
barriers on the CSSC between mile marker 295.5 (approximately 3600 feet
south of the Romeo Road Bridge) and mile marker 297.2 (approximately
2,640 feet north of the aerial pipeline arch). This RNA was reduced in
size in response to public comments on a previous temporary interim
rule. Public comments suggested that the RNA extend no further than
1,200 feet north and south of the aerial pipeline arch and the Romeo
Road Bridge respectively. The Coast Guard finds that the current size
of the RNA is necessary to account for situations where a vessel inside
the barrier could come into contact with a vessel outside the barrier
possibly causing sparking greater than 1,200 feet beyond the Romeo Road
Bridge or the aerial pipeline arch.
The rule also places a safety zone over a smaller portion of these
same waters located between mile marker 296.1 (approximately 958 feet
south of the Romeo Road Bridge) and mile marker 296.7 (aerial pipeline
arch located approximately 2,693 feet north east of Romeo Road Bridge).
The RNA and safety zone will be enforced at all times until the USACE
suspends operation of the electrified fish barrier and the Asian carp
are no longer deemed an environmental threat to the Great Lakes. This
temporary rule is to remain in effect until December 1, 2011 in order
to give sufficient time for the USACE to complete construction and
testing of Barrier IIB and determine the long-term operational
configurations associated with the electric dispersal barrier.
The RNA places requirements on all vessels to include: (1) Vessels
must be greater than twenty feet in length; (2) Vessel must not be a
personal watercraft of any kind (i.e. jet skis, wave runners, kayak,
etc.); (3) All up-bound and down-bound commercial tows that consist of
barges carrying flammable liquid cargos (grade A through C, flashpoint
below 140 degrees Fahrenheit, or heated to within 15 degrees Fahrenheit
of flash point) must engage the services of a bow boat at all times
until the entire tow is clear of the RNA; (4) Vessels engaged in
commercial service, as defined in 46 U.S.C 2101(5), may not pass (meet
or overtake) in the RNA and must make a SECURITE call when approaching
the RNA to announce intentions and work out passing arrangements on
either side; (5) Commercial tows transiting the RNA must only be made
up with wire rope to ensure electrical connectivity between all
segments of the tow; (6) All vessels are prohibited from loitering in
the RNA; (7) Vessels may enter the RNA for the sole purpose of
transiting to the other side and must maintain headway throughout the
transit; (8) 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 RNA; (9) All
personnel on vessels transiting the RNA should remain inside the cabin,
or as inboard as practicable. If personnel must be on
[[Page 75148]]
open decks, they must wear a Coast Guard approved personal flotation
device; (10) Vessels may not moor or lay up on the right or left
descending banks of the RNA; and, (11) Towboats may not make or break
tows if any portion of the towboat or tow is located in the RNA.
Public comments to the previous temporary interim rule suggested
that both recreational and commercial vessel traffic (1) be prohibited
from loitering, mooring, or laying up on the left or right descending
banks; (2) provide radio notification before entering the RNA; and (3)
move through the RNA with all due speed. The Coast Guard believes that
suggestions (1) and (3) are already covered by the terms of this RNA in
that no vessels may loiter or moor within the RNA. Secondly, all
vessels must enter the RNA for the sole purpose of transiting to the
other side and must maintain headway. Given the various vessel designs
and engine configurations, requiring a certain speed is not prudent or
necessary.
With regard to the requirement to have recreational vessels provide
radio notification prior to entering the RNA, many of the recreational
vessels that typically pass through the RNA are not required to carry
marine band VHF radios. As such, requiring radio call outs is beyond
the scope of this rule. Furthermore, the majority of recreational
vessels that typically pass through the RNA are not comparable in size
or maneuverability to the commercial vessels that typically pass
through the RNA. As such, the Coast Guard finds that the proposed
requirement is not necessary to prevent injury to persons, property, or
the waterway. Furthermore, there has been no requirement for
recreational vessels to make radio call outs since 2002 and there have
been no reported casualties or incidents resulting from recreational
vessels not calling out.
This temporary final rule places additional restrictions on all
vessels transiting a safety zone that encompasses a smaller portion of
the CSSC. The safety zone consists of all the waters of the CSSC
located between 270 feet south of the Romeo Road Bridge (mile marker
296.1) to the south side of the aerial pipeline (mile marker 296.7).
Vessels are prohibited from transiting the safety zone with non-potable
water on board in any space except for water on board that will not be
discharged on the other side of the safety zone. Vessels must notify
and obtain permission from the Captain of the Port Sector Lake Michigan
prior to transiting the safety zone if they intend to discharge any
non-potable water attained on one-side of the safety zone on the other
side of the zone. This includes water in void spaces being
unintentionally introduced through cracks or other damage to the hull.
The Captain of the Port Sector Lake Michigan maintains a telephone line
that is manned 24-hours a day, seven days a week at 414-747-7182.
Public comments on this portion of the rule requested that this
rule exempt ``water on board from a commercial or municipal source
(which ultimately could be discharged)'' because it is inconsistent
with Title 33 CFR Part 151. The Coast Guard declines to include such an
exemption. First, the prohibitions in this rule are consistent with 33
CFR Part 151 because, under that Part, water from a commercial or
municipal source held for the purpose to control or maintain trim,
draught, stability, or stresses of the vessel, regardless of how it is
carried, will still be considered ``ballast water'' as contemplated by
Part 151. Therefore, Part 151 does not differentiate ballast water that
is collected from commercial or municipal sources.
Secondly, if vessel operators intend on transiting the zone with
the intent of discharging non-potable water that comes from a
commercial or municipal source north of the barrier, those vessels are
able to request permission to demonstrate to the District Commander or
his designated representative that such discharge would be biologically
sound on a case-by-case basis.
Public comments also requested that inadvertent leakage not be held
as a violation of this rule because such a provision would be
inconsistent with the Coast Guard's ballast water regulation. Again,
the Coast Guard finds that the prohibitions against the discharge of
non-potable water in this rule are consistent with the Coast Guard's
ballast water regulations. Title 33 CFR Part 151 requires vessels to
retain ballast water on board or use an environmentally sound method of
ballast water management approved by the Commandant. The Coast Guard's
interpretation of retaining ballast water on board does not allow for
inadvertent leakage. Therefore, there is no inconsistency between the
regulations. Furthermore, for those vessels that cannot avoid
inadvertent leakage of non-potable water, they may be permitted to pass
the safety zone if they can demonstrate through testing that the water
does not contain potential Silver or Asian carp or viable eggs or
gametes from these carp.
These restrictions are necessary for safe navigation of the RNA and
to ensure the safety of vessels and their personnel as well as the
public's safety due to the electrical discharges noted during safety
tests conducted by the USACE. They are also necessary to protect from
the harms presented by a potential invasion of Asian carp in Lake
Michigan. Deviation from this temporary final rule is prohibited unless
specifically authorized by the Commander, Ninth Coast Guard District or
his designated representatives. The Commander, Ninth Coast Guard
District designates Captain of the Port Sector Lake Michigan and
Commanding Officer, Marine Safety Unit Chicago, as his designated
representatives for the purposes of the RNA.
If, for any reason, the safety zone or RNA is at any time
suspended, the Commander, Ninth Coast Guard District or the Captain of
the Port Lake Michigan will cause notice of the enforcement of the
safety zone and/or RNA to be made by all appropriate means to effect
the widest publicity among the affected segments of the public.
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.
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
[[Page 75149]]
associated with this rule will include alternative transportation
methods for vessels under 20 feet in length, bow boat assistance for
red flag vessels and the potential costs associated with possible
delays or inability to transit the safety zone for those vessels
transporting non-potable water attained on one side of the barrier for
discharge on 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. In response to public comments
from the last temporary interim rule, the Coast Guard does not expect
the USACE to resume funding of the bow boats. As such, interested
parties are encouraged to comment on how this provision will impact
them assuming there will be no Federal funding of bow boats. 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).
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
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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
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. Suspend Sec. 165.923 from 5 p.m. on December 1, 2010 until 5 p.m.
on December 1, 2011.
0
3. Add new temporary Sec. 165.T09-1054 from 5 p.m. on December 1, 2010
until 5 p.m. on December 1, 2011 as follows:
Sec. 165.T09-1054 Safety Zone and Regulated Navigation Area, Chicago
Sanitary and Ship Canal, Romeoville, IL.
(a) Safety Zone.
(1) The following area is a temporary safety zone: All waters of
the CSSC located between mile marker 296.1 (approximately 958 feet
south of the Romeo Road Bridge) and mile marker 296.7 (aerial pipeline
arch located approximately 2,693 feet north east of Romeo Road Bridge).
(2) Regulations.
(i) All vessels are prohibited from transiting the safety zone with
any non-potable water on board if they intend to release that water in
any form within, or on the other side of the safety zone. Non-potable
water includes but is not limited to any water taken on board to
control or maintain trim, draft, stability or stresses of the vessel,
or taken on board due to free communication between the hull of the
vessel and exterior water. Potable water is water treated and stored
aboard the vessel that is suitable for human consumption.
(ii) Vessels with non-potable water onboard are permitted to
transit the safety zone if they have taken steps to prevent the release
of that water in any form, in or on the other side of, the safety zone,
or alternatively if they have plans to dispose of the water in a
biologically sound manner.
(iii) Vessels with non-potable water aboard that intend to
discharge on the other side of the zone must contact the COTP, her
designated representative or her on-scene representative and obtain
permission to transit and discharge prior to transit. Examples of
discharges that may be approved by the COTP include plans to dispose of
the water in a biologically sound manner or demonstrate through testing
that the non-potable water does not contain potential live Silver or
Asian carp, or viable eggs or, gametes from these carp.
(iv) In accordance with the general regulations in Sec. 165.23 of
this part, entry into, transiting, or anchoring within this safety zone
by vessels with non-potable water on board is prohibited unless
authorized by the Captain of the Port Lake Michigan, her designated
representative, or her on-scene representative.
(v) The ``on-scene representative'' of the Captain of the Port is
any Coast Guard commissioned, warrant or petty officer who has been
designated by the Captain of the Port Lake Michigan to act on her
behalf. The on-scene representative of the Captain of the Port Lake
Michigan will be aboard a Coast Guard, Coast Guard Auxiliary, or other
designated vessel or will be on shore and will communicate with vessels
via VHF-FM radio or loudhailer. The Captain of the Port Lake Michigan
or her on-scene representative may also be contacted via VHF-FM radio
Channel 16 or through the Coast Guard Sector Lake Michigan Command
Center at 414-747-7182.
(b) Regulated Navigation Area. (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
3,600 feet south of the Romeo Road Bridge) and mile marker 297.2
(approximately 2,640 feet north of the aerial pipeline arch).
(2) Regulations.
(i) The general regulations contained in 33 CFR 165.13 apply.
(ii) Vessels that comply with the following restrictions are
permitted to transit the RNA:
(A) All up-bound and down-bound barge tows that consist of barges
carrying flammable liquid cargos (Grade A through C, flashpoint below
140 degrees Fahrenheit, or heated to within 15 degrees Fahrenheit of
flash point) must engage the services of a bow boat at all times until
the entire tow is clear of the RNA.
(B) Vessels engaged in commercial service, as defined in 46 U.S.C.
2101(5), may not pass (meet or overtake) in the RNA and must make a
SECURITE call when approaching the RNA to announce intentions and work
out passing arrangements.
(C) Commercial tows transiting the RNA must be made up with only
wire rope to ensure electrical connectivity between all segments of the
tow.
(D) All vessels are prohibited from loitering in the RNA.
[[Page 75151]]
(E) Vessels may enter the RNA 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 RNA.
(F) Except for law enforcement and emergency response personnel,
all personnel on vessels transiting the RNA should remain inside the
cabin, or as inboard as practicable. If personnel must be on open
decks, they must wear a Coast Guard approved personal flotation device.
(G) Vessels may not moor or lay up on the right or left descending
banks of the RNA.
(H) Towboats may not make or break tows if any portion of the
towboat or tow is located in the RNA.
(I) Persons on board any vessel transiting this RNA in accordance
with this rule or otherwise are advised they do so at their own risk.
(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.).
(c) 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 RNA. 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 representative means the Captain of the Port Lake
Michigan and Commanding Officer, Marine Safety Unit Chicago.
Vessel means every description of watercraft or other artificial
contrivance used, or capable or being used, as a means of
transportation on water. This definition includes, but is not limited
to, barges.
(d) Enforcement Period. The regulated navigation area and safety
zone will be enforced from 5 p.m. on December 1, 2010, until 5 p.m. on
December 1, 2011. This regulated navigation area and safety zone are
enforceable with actual notice by Coast Guard personnel beginning 5
p.m. on December 1, 2010, until 5 p.m. on December 1, 2011.
(e) Compliance. All persons and vessels must comply with this
section and any additional instructions or orders of the Ninth Coast
Guard District Commander, or his designated representatives. Any person
on board any vessel transiting this RNA in accordance with this rule or
otherwise does so at their own risk.
(f) Waiver. For any vessel, the Ninth Coast Guard District
Commander, or his designated representatives, may waive any of the
requirements of this section, upon finding that operational conditions
or other circumstances are such that application of this section is
unnecessary or impractical for the purposes of vessel and mariner
safety.
Dated: November 22, 2010.
M.N. Parks,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 2010-30289 Filed 12-1-10; 8:45 am]
BILLING CODE 9110-04-P