[Federal Register: August 10, 2005 (Volume 70, Number 153)]
[Rules and Regulations]
[Page 46407-46410]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10au05-4]
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DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[CGD09-05-102]
RIN 1625-AA11
Regulated Navigation Area, Chicago Sanitary and Ship Canal,
Romeoville, IL
AGENCY: Coast Guard, DHS.
[[Page 46408]]
ACTION: Temporary final rule.
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SUMMARY: The Coast Guard is extending the previously established
temporary final rule published in the Federal Register on January 26,
2005 which created a regulated navigation area on the Illinois Waterway
near Romeoville, IL. This temporary regulated navigation area will
place navigational and operational restrictions on all vessels
transiting through the demonstration electrical dispersal barrier
located on the Chicago Sanitary and Ship Canal. This regulated
navigation area is necessary to protect vessels and their crews from
harm as a result of electrical discharges emitting from the electrical
dispersal barrier as vessels transit over it.
DATES: This rule is effective from 12 p.m. (local) June 30, 2005
through 12 p.m. (local) December 31, 2005. Comments and related
materials must reach the Docket Management Facility on or before
December 31, 2005.
ADDRESSES: You may submit comments identified by Coast Guard docket
number [CGD09-05-102] to the Commander (m) Ninth Coast Guard District,
1240 E.9th Street, Room 2069, Cleveland, OH 44199. The Marine Safety
and Analysis Branch (map) is the document management facility for this
temporary rule and maintains the public docket for this rulemaking.
Documents that become a part of this docket are available for
inspection between 8 a.m. and 4 p.m., Monday through Friday, except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have further questions on this
rule, contact CDR K. Phillips, Marine Safety and Analysis Branch,
Cleveland, at (216) 902-6045.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to submit comments and related materials. Comments
and related materials must reach the Docket Management Facility on or
before December 31, 2005.
Submitting Comments
If you submit a comment, please include your name and address,
identify the docket number for this rulemaking [CGD09-05-102], indicate
the specific section of this document to which each comment applies,
and give the reason for each comment. You may submit your comments and
material by mail or delivery to the docket management facility (see
ADDRESSES); but please submit your comments and material by only one
means. If you submit them by mail or delivery, submit them in an
unbound format, no larger than 8 by 11 inches, suitable for copying and
electronic filing. If you submit them by mail and would like to know
that they reached the facility, please enclose a stamped, self-
addressed postcard or envelope. We will consider all comments and
material received during the comment period, which may result in a
modification to the rule.
Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for one to the docket management facility (see ADDRESSES)
explaining why one would be beneficial. If we determine that one would
aid this rulemaking, we will hold one at a time and place announced by
a later notice in the Federal Register.
Regulatory Information
We did not publish a notice of proposed rulemaking (NPRM) for this
rulemaking. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing an NPRM. This potential hazard to
vessels and people only recently became apparent, and therefore we were
unable to publish an NPRM followed by a final rule. At this point, it
would be impracticable and contrary to the public interest to provide
for notice and comment, due to the need to prevent the risk of
electrical hazard to vessels and their crew/passengers. During the
enforcement of this regulated navigation area, comments will be
accepted and reviewed and may result in a modification to the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause
exists to make this rule effective less than 30 days after publication
in the Federal Register. Delaying this rule would be impracticable and
contrary to the public interest of ensuring the safety of persons and
vessels, and immediate action is necessary to prevent possible loss of
life or property.
Background and Purpose
On January 7, 2005, the U.S. Army Corps of Engineers, in close
coordination with the U. S. Coast Guard, conducted preliminary safety
tests on the Chicago Sanitary and Ship Canal at Mile Marker 296.5 in
the vicinity of the demonstration electrical dispersal barrier located
on the canal near Romeoville, IL. This barrier was constructed to
prevent Asian Carp from entering Lake Michigan through the Illinois
River system by generating a low-voltage electric field across the
canal. The Coast Guard and Army Corps of Engineers conducted field
tests to ensure the continued safe navigation of commercial and
recreational traffic across the barrier; however, results indicated a
significant arcing risk and hazardous electrical discharges as vessels
transited the barrier posing a significant risk to navigation through
the barrier. To mitigate this risk, navigational and operational
restrictions will be placed on all vessels transiting through the
vicinity.
On January 26, 2005 this regulated navigational area was published
in the Federal Register (70 FR 3625) as a temporary final rule. Testing
has continued since the regulation was first proposed in January 2005.
The testing on the electrical dispersal barrier is still being
conducted. Preliminary results indicate that further tests and analysis
are warranted. Therefore, the Coast Guard is enacting a second RNA and
comment period.
Discussion of Comments and Changes
Five comments have been received so far with regards to the first
RNA. These have been reviewed, evaluated and responded to. A summary of
each follows:
We received two comments concerning the requirement to wear a Coast
Guard approved Type I personal flotation device (PFD) while in the
demonstration electrical dispersal barrier. It was suggested that the
wearing of the Type V PFD would be sufficient. The COTP Chicago has
determined that until subsequent field-testing determines the waters in
this area do not pose significant risks to human life, the wearing of
the Type I will be the standard. A Type I PFD is designed to provide
support to the head so that the face of an unconscious or exhausted
person is held above the water.
One comment recommended that visual warnings be posted to alert
towboat pilots well before the demonstration electrical dispersal
barrier. The Coast Guard is presently working with the Army Corp of
Engineers to install signs, facing both directions, that will alert
waterway operators prior to entering the electrical barrier.
One comment requested that, as the Corp's testing provides new
information, that the RNA be reopened for further comment. The Coast
Guard will not proceed with a permanent final rule until all testing
data has been gathered, analyzed, and reviewed by all concerned
parties. The rulemaking will remain open for comment throughout this
process.
One comment requested that the Coast Guard allow emergency
exception to the requirements that vessels may not
[[Page 46409]]
moor or lay up on the right or left descending banks, and towboats may
not make or break tows. The Coast Guard does not find this reasonable.
Test results indicate such activities in the vicinity of the fish
barrier cause electrical arcing and are inherently dangerous at all
times when the fish barrier is energized; even in emergency situations.
A request for a public meeting was received by one commenter in
order to submit information on the generally accepted use of Type V
PFDs as work vests for deck crews in the towing industry, the cost and
burden associated with the requirement for Type I PFDs for the limited
area versus the equipment required under federal equipment standards,
and the company's safety program. The Coast Guard will take the request
for a public meeting under consideration.
Discussion of Rule
Until this potential hazard to navigation can be rectified, the
Coast Guard will require vessels transiting the regulated navigation
area to adhere to specified operational and navigational requirements.
The regulated navigation area encompasses all waters of the Chicago
Sanitary and Ship Canal from the north side of the Romeo Highway Bridge
at Mile Marker 296.1 to the aerial pipeline arch located at Mile Marker
296.7. The requirements placed on vessels include: All vessels are
prohibited from loitering in the regulated navigation area. Vessels may
enter this section of the waterway with the sole purpose of transiting
to the other side, and must maintain headway throughout the transit.
All personnel on open decks must wear a Coast Guard approved Type I
personal flotation device while in the regulated navigation area until
subsequent field testing determines the waters in this area do not pose
significant risk to human life. Vessels may not moor or lay up on the
right or left descending banks. Towboats may not make or break tows.
Vessels may not pass (meet or overtake) in the regulated navigation
area and must make a SECURITE call when approaching the barrier to
announce intentions and work out passing arrangements on either side.
Commercial tows transiting the barrier must be made up with wire rope
to ensure electrical connectivity between all segments of the tow.
These restrictions are necessary for safe navigation of the barrier
and to ensure the safety of vessels and their personnel as well as the
public's safety due to the electrical discharges noted during recent
safety tests conducted by the Army Corps of Engineers. Deviation from
this rule is prohibited unless specifically authorized by the
Commander, Ninth Coast Guard District or his designated representative.
Regulatory Evaluation
This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. It has not been reviewed by the Office of
Management and Budget under that Order. It is not ``significant'' under
the regulatory policies and procedures of the Department of Homeland
Security (DHS).
We expect the economic impact of this rule to be so minimal that a
full Regulatory Evaluation under the regulatory policies and procedures
of DHS is unnecessary. This determination is based on the fact that
traffic will still be able to transit through the RNA.
Small Entities
This rule does not require a general notice of proposed rulemaking
and, therefore, is exempt from the requirements of the Regulatory
Flexibility Act. Although this rule is exempt, we have reviewed it for
potential economic impact on small entities.
We suspect that there may be small entities affected by this rule
but are unable to provide more definitive information. The risk,
outlined above, is severe and requires that immediate action be taken.
The Coast Guard will evaluate as more information becomes available.
If you think that your business, organization, or governmental
jurisdiction qualifies as a small entity and that this rule will have a
significant economic impact on it, please submit a comment to the
Docket Management Facility at the address under ADDRESSES. In your
comment, explain why you think it qualifies and how and to what degree
this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Public Law 104-121), we offered to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process. Small
businesses may send comments on actions of Federal employees who
enforce, or otherwise determine compliance with, Federal regulations to
the Small Business and Agriculture Regulatory Enforcement Ombudsman and
the Regional Small Business Regulatory Fairness Boards. The Ombudsman
evaluates these actions annually and rates each agency's responsiveness
to small business. If you wish to comment on actions by employees of
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).
Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule will not result in such an expenditure, we
do discuss the effects of this rule elsewhere in this preamble.
Taking of Private Property
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.
[[Page 46410]]
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 rule under Commandant Instruction M16475.lD,
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have
made a preliminary determination that there are no factors in this case
that would limit the use of a categorical exclusion under section 2.B.2
of the Instruction. Therefore we believe this rule should be
categorically excluded, under figure 2-1, paragraph 34 (g) from further
environmental documentation. This temporary rule establishes a
regulated navigation area and as such is covered by this paragraph.
A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' are available in the docket
where indicated under ADDRESSES. Comments on this section will be
considered before we make the final decision on whether the rule should
be categorically excluded from further environmental review.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and 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; 50
U.S.C. 191, 195; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub.
L. 107-295, 116 Stat. 2064; Department of Homeland Security
Delegation No. 0170.1.
0
2. Add Sec. 165.T09.102 to read as follows:
Sec. 165.T09.102 Temporary Regulated Navigation Area between mile
markers 296.1 and 296.7 of the Chicago Sanitary and Ship Canal located
near Romeoville, IL.
(a) Location. The following is a Regulated Navigation Area: All
waters of the Chicago Sanitary and Ship Canal, Romeoville, IL beginning
at the north side of Romeo Road Bridge Mile Marker 296.1, and ending at
the south side of the Aerial Pipeline Mile Marker 296.7.
(b) Effective period: This rule is effective from 12 p.m. (local)
June 30, 2005 through 12 p.m. (local) December 31, 2005.
(c) Regulations. (1) The general regulations contained in 33 CFR
165.13 apply.
(2) All vessels are prohibited from loitering in the regulated
navigation area. Vessels may enter this section of the waterway with
the sole purpose of transiting to the other side, and must maintain
headway throughout the transit. All personnel on open decks must wear a
Coast Guard approved Type I personal flotation device while in the
regulated navigation area until subsequent field testing determines the
waters in this area do not pose significant risk to human life. Vessels
may not moor or lay up on the right or left descending banks. Towboats
may not make or break tows. Vessels may not pass (meet or overtake) in
the regulated navigation area and must make a SECURITE call when
approaching the barrier to announce intentions and work out passing
arrangements on either side. Commercial tows transiting the barrier
must be made up with wire rope to ensure electrical connectivity
between all segments of the tow.
(3) All persons and vessels shall comply with this rule and any
additional instructions of the Ninth Coast Guard District Commander, or
his designated representative.
Dated: June 30, 2005.
R.J. Papp, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. 05-15781 Filed 8-9-05; 8:45 am]
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