[Federal Register Volume 77, Number 3 (Thursday, January 5, 2012)]
[Notices]
[Pages 537-539]
[FR Doc No: 2011-33781]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2011-0389]

Qualification of Drivers; Exemption Applications; Epilepsy and
Seizure Disorders

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of applications for exemption, request for comments.

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SUMMARY: FMCSA announces receipt of applications from 15 individuals
for an exemption from the prohibition against persons with a clinical
diagnosis of epilepsy or any other condition which is likely to cause a
loss of consciousness or any loss of ability to operate a commercial
motor vehicle (CMV) from operating CMVs in interstate commerce. If
granted, the exemptions would enable these individuals with seizure
disorders to operate CMVs in interstate commerce.

DATES: Comments must be received on or before February 6, 2012.

ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket ID FMCSA-2011-0389 using any of the
following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the on-line instructions for submitting
comments.
     Mail: Docket Management Facility; U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: 1-(202) 493-2251.
    Each submission must include the Agency name and the docket ID for
this Notice. Note that DOT posts all comments received without change
to http://www.regulations.gov, including any personal information
included in a comment. Please see the Privacy Act heading below.
    Docket: For access to the docket to read background documents or
comments, go to http://www.regulations.gov at any time or Room W12-140
on the ground level of the West Building, 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. The FDMS is available 24 hours each day, 365
days each year. If you want

acknowledgment that we received your comments, please include a self-
addressed, stamped envelope or postcard or print the acknowledgement
page that appears after submitting comments on-line.
    Privacy Act: Anyone may search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review the DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (65 FR 19477-78; Apr. 11, 2000).
This information is also available at http://Docketinfo.dot.gov.

FOR FURTHER INFORMATION CONTACT: Elaine Papp, Chief, Medical Programs
Division<PHONE_NUMBER>, or via email at<EMAIL_ADDRESS>or by
letter FMCSA, Room W64-113, Department of Transportation, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001. Office hours are from
8:30 a.m. to 5 p.m., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 31315 and 31136(e), FMCSA may grant an exemption
for a 2-year period if it finds ``such exemption would likely achieve a
level of safety that is equivalent to or greater than the level that
would be achieved absent such exemption.'' The statutes also allow the
Agency to renew exemptions at the end of the 2-year period. The fifteen
individuals listed in this notice have recently requested an exemption
from the epilepsy prohibition in 49 CFR 391.41(b)(8), which applies to
drivers who operate CMVs as defined in 49 CFR 390.5, in interstate
commerce. Section 391.41(b)(8) states that a person is physically
qualified to drive a commercial motor vehicle if that person has no
established medical history or clinical diagnosis of epilepsy or any
other condition which is likely to cause the loss of consciousness or
any loss of ability to control a commercial motor vehicle.
    FMCSA provides medical advisory criteria for use by medical
examiners in determining whether drivers with certain medical
conditions should be certified to operate commercial motor vehicles in
intrastate commerce. The advisory criteria indicates that if an
individual has had a sudden episode of a non-epileptic seizure or loss
of consciousness of unknown cause which did not require anti-seizure
medication, the decision whether that person's condition is likely to
cause the loss of consciousness or loss of ability to control a CMV
should be made on an individual basis by the medical examiner in
consultation with the treating physician. Before certification is
considered, it is suggested that a 6-month waiting period elapse from
the time of the episode. Following the waiting period, it is suggested
that the individual have a complete neurological examination. If the
results of the examination are negative and anti-seizure medication is
not required, then the driver may be qualified.
    In those individual cases where a driver had a seizure or an
episode of loss of consciousness that resulted from a known medical
condition (e.g., drug reaction, high temperature, acute infectious
disease, dehydration, or acute metabolic disturbance), certification
should be deferred until the driver has fully recovered from that
condition, has no existing residual complications, and is not taking
anti-seizure medication.
    Drivers with a history of epilepsy/seizures off anti-seizure
medication and seizure-free for 10 years may be qualified to operate a
CMV in interstate commerce. Interstate drivers with a history of a
single unprovoked seizure may be qualified to drive a CMV in interstate
commerce if seizure-free and off anti-seizure medication for a 5-year
period or more.

Summary of Applications

Christopher Boddie

    Mr. Boddie is a 52-year-old driver in the state of Pennsylvania. He
had a single seizure event in March 2011 that his physician believes
was the result of uncontrolled hypertension. He was placed on anti-
seizure medication and anti-hypertensive medications in March 2011 and
discontinued use in August of the same year. He states his blood
pressure is under control and he continues to take his anti-
hypertensive medication.

Roger Corvasce

    Mr. Corvasce is a 40-year-old CMV driver form the state of New
York. He was diagnosed with a brain tumor and had surgery to remove it
successfully in January 2010. He was put on anti-seizure medication as
a precaution after the surgery. His last seizure was December 2009. He
remains on the same anti-seizure medication, with the dosage and
frequency remaining the same for 2 years. His physician states he that
his condition is stable. He would like to operate tractor trailer
trucks in interstate commerce.

Joseph D'Angelo

    Mr. D'Angelo is a 55-year-old CMV driver in the state of New York.
He had a single seizure at the age of 14 in 1970. He has remained on
anti-seizure medication since that time. The dosage and frequency of
the anti-seizure medications have remained the same since 2002. His
doctor states that his condition would not interfere with his ability
to safely operate a commercial motor vehicle.

Michael Drake

    Mr. Drake is a 37-year-old CMV driver in the state of Delaware. Mr.
Drake had surgery in July 2009 to remove the part of his brain that was
the focus of his seizures. His last seizure was July 2009. He is on the
same anti-seizure medication, with the dosage and frequency remaining
the same for over 10 years. His Neurologist states that there should be
no restriction preventing him from having a CDL and that would likely
obtain a level of safety that is equivalent or greater than other
drivers.

Virgil Godbey

    Mr. Godbey is a 52-year-old CMV driver in the state of Ohio. He was
diagnosed with complex partial epilepsy in 2006. His last seizure was
in 2006. He takes anti-seizure medication. The dosage and frequency of
the anti-seizure medications have remained the same for 5 years. He has
a good safety record in relation to his personal driving record and his
physician states he is in excellent health.

Ricki Gutermann

    Mr. Gutermann is a 45-year-old driver from the state of Wisconsin.
He previously held a CDL and drove a truck for Mobil Oil. He was
involved in a non-job related motor vehicle accident and sustained a
traumatic head injury. He was prescribed anti-seizure medication and
had two seizures in 1998 while physicians were adjusting his
medication. His last seizure was July 1998. His physician states he is
taking the same anti-seizure medication, with the dosage and frequency
remaining the same for 13 years. The physician states that he feels it
is appropriate to allow him to be recertified to drive commercial
vehicles.

Glen Hogan

    Mr. Hogan is a 57-year-old CMV driver in the state of Wisconsin.
Mr. Hogan had a single seizure event in February 2010 and has been on
the same anti-seizure medication since that time, with the dosage and
frequency remaining the same for 22 months. His

last seizure was November 2009. He follows up regularly with his
physician and his blood levels are in a therapeutic range. His
physician states that he believes that in granting Mr. Hogan the
exemption, he would maintain the same level of safety as other CMV
drivers.

Jordan Hyster

    Mr. Hyster is a 22-year-old CMV driver in the state of Ohio. Mr.
Hyster was diagnosed with epilepsy in 2005 and placed on anti-seizure
medication. His last seizure was in January 2009, after being told to
stop his medication by previous physician. He is again on anti-seizure
medication. The dosage and frequency of the anti-seizure medication has
remained the same for 23 months. His physician states that he believes
that Mr. Hyster will likely achieve a level of safety expected of
drivers as long as he remains on medication.

David R. Kietzman

    Mr. Keitzman is a 49-year-old CMV driver in the state of Wisconsin.
In December 2007 he underwent surgery to remove a right parietal
vascular malformation. His physician states that this brain abnormality
was the cause of his seizures. He has been on the same anti-seizure
medications with the dosage and frequency remaining the same since
October 2008. His last seizure was October 2008. His physician states
that he is neurologically normal. His current employer states that he
has been an intrastate tractor semi-trailer driver for them since 1991
and has proven to be a safe, competent, and conscientious driver.

Joseph Kogut

    Mr. Kogut is a 53-year-old CMV driver in the state of North
Carolina. He was involved in a motor vehicle accident in 1982 and
sustained a head injury. Following the accident, he had a single
seizure. He has taken the same anti-seizure medication for more than 29
years with no change in dosage or frequency of use. His physician
states that he feels that Mr. Kogut should be allowed to drive CMVs.

Philip McLain

    Mr. McLain is 47-year old CMV driver in the state of Maine. He had
a nighttime seizure-like episode in August 2010. He was diagnosed
subsequently with AVM (Arteriovenous Malformation), a brain congenital
condition. He underwent surgery to remove the defect and has had no
further seizures or seizure-like episodes. His last seizure was in
August 2010. He was given anti-seizure medication following the
operation and has been off the medication since October 2010. He
remains asymptomatic and his physician states she is in favor of
allowing him to drive without restrictions.

Mr. Andy McNeal

    Mr. McNeal is a 49-year-old driver in the state of Indiana. In
2007, he had a single seizure event and was diagnosed with a brain
tumor. He had the tumor removed successfully and his last seizure was
May 2007. He is taking anti-seizure medication, with the dosage and
frequency for over 4 years. He has had an electro-encephalogram (EEG)
in 2009 that showed no epileptiform activity and an Magnets Imaging
Resonance (MRI) in 2010 showed no evidence of tumor recurrence. His
physician states that although there is no way to guarantee his never
having another seizure, neurological examination currently shows no
deficits which would impair his safe operation of a motor vehicle.

Lonnie Reiker

    Mr. Reiker is a 52-year-old driver who drives in the state of
Illinois. Mr. Reiker was diagnosed with a brain tumor in December 2009
following a single seizure event in November 2009. He had surgery in
March 2010 to remove the tumor and has been given anti-seizure
medication following the surgery. The dosage and frequency of the anti-
seizure medication has remained the same for more than 2 years. His
last seizure was December 2009. Three subsequent MRIs indicate no tumor
re-growth. His physician states that, in his opinion, at this time Mr.
Reiker's driving safety is equivalent to other CMV drivers.

Mark A. Smith

    Mr. Smith is a 51-year-old CMV driver in the state of California.
He had a single episode of loss of consciousness in August 2010. He is
taking the same anti-seizure medication with the dosage and frequency
remaining the same for 16 months. His last seizure was August 2010. He
is under the regular care of a neurologist, who states he is stable and
doing very well. He states further that Mr. Smith is likely to achieve
a level of safety that is equivalent or greater than the level of any
other person to drive. He would be driving a semi truck and seeks to
work five days on and then two days off.

Cheryl Woskie

    Ms. Woskie is a 41-year-old Class B bus driver in the state of
Massachusetts. She was diagnosed with a Cavernoma, a brain
malformation, in October 2010, causing her to have three seizures
within one month. Surgery was performed to remove the congenital defect
and she was placed on anti-seizure medication, which was discontinued
in November 2011. She would like to begin driving a bus again.

Request for Comments

    In accordance with 49 U.S.C. 31315 and 31136(e), FMCSA requests
public comment from all interested persons on the exemption
applications described in this notice. We will consider all comments
received before the close of business on the closing date indicated
earlier in the notice.

    Issued on: December 22, 2011.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2011-33781 Filed 1-4-12; 8:45 am]
BILLING CODE 4910-EX-P


[Federal Register Volume 80, Number 5 (Thursday, January 8, 2015)]
[Proposed Rules]
[Pages 1008-1013]
[FR Doc No: 2015-00152]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 80, No. 5 / Thursday, January 8, 2015 /
Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2012-0002; Directorate Identifier 2011-NE-42-AD]
RIN 2120-AA64

Airworthiness Directives; Continental Motors, Inc. Reciprocating
Engines

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of
comment period.

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SUMMARY: We are revising an earlier proposed airworthiness directive
(AD) for certain Airmotive Engineering Corp. (AEC) replacement parts
manufacturer approval (PMA) cylinder assemblies marketed by Engine
Components International Division (ECi). These cylinder assemblies are
used on all Continental Motors, Inc. (CMI) model 520 and 550
reciprocating engines, and on all other CMI engine models approved for
the use of model 520 and 550 cylinder assemblies, such as the CMI model
470 when modified by supplemental type certificate (STC). The NPRM
proposed to require initial and repetitive inspections, replacement of
cracked cylinder assemblies, and replacement of cylinder assemblies at
reduced times-in-service. The NPRM also proposed to prohibit the
installation of affected cylinder assemblies into any engine. The NPRM
was prompted by reports of multiple cylinder head-to-barrel separations
and cracked and leaking aluminum cylinder heads. This supplemental NPRM
(SNPRM) modifies the schedule for removal of the affected cylinder
assemblies, adds that overhauled affected cylinder assemblies be
removed within 80 hours, eliminates a reporting requirement, and
removes the requirement for initial and repetitive inspections. We are
proposing this SNPRM to prevent failure of the cylinder assemblies,
which could lead to failure of the engine, in-flight shutdown, and loss
of control of the airplane. We are reopening the comment period to
allow the public the chance to comment on the proposed changes to the
NPRM.

DATES: We must receive comments on this SNPRM by February 23, 2015.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, 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 service information identified in this proposed AD, contact
Engine Components International Division, 9503 Middlex Drive, San
Antonio, TX 78217; phone:<PHONE_NUMBER>; Internet: http://www.eci.aero/pages/tech_svcpubs.aspx. You may view this service information at the
FAA, Engine & Propeller Directorate, 12 New England Executive Park,
Burlington, MA. For information on the availability of this material at
the FAA, call<PHONE_NUMBER>.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2012-
0002; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this SNPRM, the regulatory evaluation, any comments received,
and other information. Given the volume of comments received, we are
not identifying the individual commenters within this SNPRM. However,
we identify all commenters, other than individuals, in the docket. The
street address for the Docket Office (phone:<PHONE_NUMBER>) is in the
ADDRESSES section. Comments will be available in the AD docket shortly
after receipt.

FOR FURTHER INFORMATION CONTACT: Jurgen E. Priester, Aerospace
Engineer, Special Certification Office, FAA, Rotorcraft Directorate,
2601 Meacham Blvd., Fort Worth, TX 76137; phone:<PHONE_NUMBER>; fax:
817-222-5785; email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite your review of the commenter list provided in Docket No.
FAA-2012-0002. If you submitted a comment to an organization and do not
see the name of the organization in the commenter list, please submit
your comment directly to us as provided for in this SNPRM. If you
submitted as an individual, you will not be listed as a commenter.
    We also invite you to review our responses to comments, and to
resubmit your comment if you conclude that your comment was not
responded to below.
    We also invite you to send any written relevant data, views, or
arguments about this SNPRM. Send your comments to an address listed
under the ADDRESSES section. Include ``Docket No. FAA-2012-0002;
Directorate Identifier 2011-NE-42-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this SNPRM. We will
consider all comments received by the closing date and may amend this
SNPRM because of those comments.
    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this SNPRM.

Discussion

    We issued an NPRM to amend 14 CFR part 39 by adding an AD that
would apply to certain AEC replacement PMA cylinder assemblies marketed
by ECi. These assemblies are used on CMI model 520 and 550
reciprocating engines, and all other CMI engine models approved for the
use of models 520 and 550 cylinder assemblies such as the CMI model 470
when modified by STC. The NPRM published in the Federal Register on
August 12, 2013 (78

FR 48828). The NPRM proposed to require initial and repetitive
inspections, immediate replacement of cracked cylinder assemblies, and
replacement of cylinder assemblies at reduced times-in-service (TIS)
since new. The NPRM also proposed to prohibit the installation of
affected cylinder assemblies into any engine.

Actions Since Previous NPRM Was Issued

    Since the NPRM published on August 12, 2013 (78 FR 48828), we
received numerous comments on the proposed rule. We reviewed those
comments and considered their impact to safety. Some of those comments
included additional failure information that we subsequently
incorporated in our updated risk analysis.
    Following our comment review, we determined that we needed to
review how we proposed to address the unsafe condition. So, we formed a
multi-directorate/multi-disciplinary team to review the technical basis
of the proposed rule, as well as the numerous public comments, and the
additional failure information provided by commenters, to the NPRM.
This team confirmed that the subject cylinder assemblies are unsafe.
    The team's review of the new data provided by commenters supports a
lengthier compliance interval. This team therefore recommended several
changes to the NPRM, which resulted in this SNPRM.

Comments

    We gave the public the opportunity to comment on the NPRM (78 FR
48828, August 12, 2013). The following presents the comments received
on the NPRM and the FAA's response to each comment.

Request To Withdraw the NPRM Because ECi Cylinder Assemblies Are Not
Unsafe

    Many operators, maintenance organizations, and private citizens
asked that we withdraw the NPRM (78 FR 48828, August 12, 2013). The
commenters claimed that the affected ECi cylinder assemblies have an
equivalent, or lower, failure rate than that of cylinder assemblies
manufactured by the original equipment manufacturer (OEM). We concluded
that these commenters were requesting that we withdraw the NPRM because
they believe that the ECi cylinder assemblies are not unsafe.
    We disagree. The rate of separation for the affected ECi cylinder
assemblies is at least 32 times greater than that of OEM cylinder
assemblies over the same period. Although there are approximately four
times as many OEM cylinder assemblies in service than ECi cylinder
assemblies, the ECi cylinder assemblies suffered more cylinder head
separations than OEM cylinder assemblies since 2004. This data is
available for review in Docket No. FAA-2012-0002. We did not withdraw
the NPRM.

Request To Withdraw the NPRM Because Airplanes Can Operate Safely With
a Separated Cylinder Head

    Numerous aircraft operators, maintenance organizations, and private
citizens commented that we should not issue the AD because airplanes
can continue to operate safely even after a cylinder head separation.
Several commenters have also stated that airplane engines are designed
and certified to safely operate with one failed cylinder. They cited 14
CFR 33.43 in support of their position.
    We disagree. The safety consequences represented by a cylinder head
separation in flight are significant, and include multiple secondary
effects, like fire. We did not withdraw the NPRM.
    We also disagree that Sec.  33.43, Vibration Test, supports the
commenter's position that airplanes are certified to operate safely
after a cylinder head separation. Section 33.43(d), addressing the
engine vibration survey of Sec.  33.43(a), requires assessment of
crankshaft vibration for an engine that has one cylinder that ``is not
firing.'' That paragraph, like the rest of Sec.  33.43, does not
discuss cylinder head separation. We did not withdraw the NPRM.

Request To Withdraw the NPRM Because Root Cause of Cylinder Failure Is
Unknown

    Numerous aircraft operators, maintenance organizations, and private
citizens requested that we withdraw the NPRM (78 FR 48828, August 12,
2013) because the FAA failed to identify the root cause(s) of cylinder
head separations.
    We disagree. The root cause of the cylinder head separation is not
the unsafe condition. We have identified the unsafe condition--cylinder
head separation. Removal of the cylinder assembly resolves the unsafe
condition. We did not withdraw the NPRM.

Request To Withdraw the NPRM Because Pilot Error Is Causing Cylinder
Head Separations

    Numerous organizations, aircraft operators, and private citizens
commented that cylinder head separations involving the ECi cylinder
assemblies affected by this NPRM (78 FR 48828, August 12, 2013) were
caused by pilot error rather than by design deficiencies of the
cylinder assemblies. They therefore requested that we not issue the AD.
    We disagree. If pilot error was leading to cylinder head
separation, then we would expect to see similar damage in engines with
other than ECi cylinder assemblies installed where the pilots exceeded
the same limitation(s). However, we do not have any such data. We did
not withdraw the NPRM.

Request To Adopt Less Stringent Compliance Requirements

    The National Transportation Safety Board (NTSB), other
organizations, numerous aircraft operators, and private citizens
commented that the compliance requirements in the proposed AD are too
severe and that we should adopt less stringent requirements.
    We agree that the requirements for removal of the cylinder
assemblies can be made less severe. Our updated analysis indicates that
our proposed reduced compliance interval with the attendant removal
from service of affected cylinder assemblies and lesser impact to
operators addresses the unsafe condition and is consistent with our
risk guidelines. We revised the compliance paragraphs in this SNPRM by
changing the schedule for removal of affected cylinder assemblies to a
phased removal schedule for all affected cylinder assemblies based on
total time in service since new.
    The NTSB also recommended in NTSB Safety Recommendation A-12-7 that
we impose a repetitive inspection requirement for certain ECi cylinder
assemblies and their removal once they reach the manufacturer's
recommended time between overhaul (TBO).
    We disagree. Repetitive inspections until TBO as suggested by the
commenter, is inconsistent with the serious hazard represented by
cylinder assembly failures. Therefore, we are requiring removal of
affected cylinder assemblies from service prior to TBO. Also, engine
overhaul is not a requirement for all operators. Therefore, tying the
proposed recurrent inspection to engine overhaul would not resolve the
unsafe condition. We did not change this proposed AD based on this
comment.
    The NTSB also noted that the proposed rule would affect many more
cylinder assemblies than the NTSB had included in its safety
recommendation letter A-12-7, dated February 24, 2012, to the FAA. The
NTSB commented that the NPRM's proposal to remove Group A cylinder
assemblies (S/Ns 1 through

33696) with fewer than 500 hours TIS or more than 1,000 hours TIS
within 25 hours does not appear to be supported by existing service
information or discussions between the NTSB and the FAA.
    We disagree. Based on service failure data and known implementation
of design improvements, this proposed AD must apply to cylinder
assemblies S/Ns 1 through 61176. We did not change this proposed AD
based on this comment.

Request for FAA To Follow Its Own Risk Assessment Policies

    Numerous aviation associations, aircraft operators, maintenance
organizations, and private citizens commented that the FAA had not
followed its own risk assessment policies in issuing the NPRM (78 FR
48828, August 12, 2013).
    We disagree. The corrective actions proposed in the NPRM, and as
revised by this SNPRM, are consistent with FAA Order 8040.4A, ``Safety
Risk Management Policy,'' dated April 30, 2012, and the Monitor Safety/
Analyze Data (MSAD) process defined in FAA Order 8110.107A, ``Monitor
Safety/Analyze Data,'' dated October 1, 2012. The requirements of this
proposed AD are also consistent with the guidance of Engine & Propeller
Directorate memorandum ``Risk Assessment for Reciprocating Engine
Airworthiness Directives,'' PS-ANE-100-1999-00006, dated May 24, 1999.
We did not change this SNPRM as a result of this comment.

Request To Withdraw the NPRM Because of the Risk of Maintenance Errors

    Numerous aircraft operators, maintenance organizations, and private
citizens commented that the FAA should withdraw the NPRM (78 FR 48828,
August 12, 2013) because the removal and replacement of affected
cylinder assemblies before TBO would result in maintenance errors that
would adversely affect safety.
    We disagree. Our regulatory framework presumes that maintenance
will be performed correctly by personnel authorized by the FAA to
return aircraft to service in an airworthy condition. Further, we have
not observed any negative effects on safety due to removal of these
cylinder assemblies during maintenance. Also, cylinder removal and
replacement is a maintenance action addressed in engine maintenance
manuals. We did not withdraw the NPRM.

Request To Review Repetitive Compression Test and Leak Check

    Some aircraft operators commented that they successfully passed the
compression test with the piston at top-dead-center, while still
finding the cylinders cracked. We interpret the comment to be that the
proposed inspection and test was inadequate to detect a cracked
cylinder assembly.
    We agree. The inspection and test may not detect cracks. Also, we
have received field reports of separated cylinders that occurred within
the repetitive 50-hour compression test and leak check inspection
intervals proposed by the NPRM. We therefore concluded that these tests
are not sufficiently reliable and the cost associated with such ongoing
tests outweighs the safety benefit. We changed this SNPRM by removing
the requirement for repetitive compression and leak inspection tests.

Request To Withdraw the NPRM Because of Excessive Cost

    Numerous aviation associations, aircraft operators, maintenance
organizations, and private citizens commented that the FAA should
withdraw the NPRM (78 FR 48828, August 12, 2013) because the cost of
compliance is excessive to owners and operators of aircraft with
engines that have affected cylinder assemblies.
    We disagree. We find that the safety benefits of the proposed rule,
as changed by this SNPRM, outweigh its estimated cost. Further, we
recalculated the cost of the NPRM (78 FR 48828, August 12, 2013). Our
previous estimate was based on 36,000 cylinder assemblies. Based on
data available to the FAA, we subsequently reduced the number affected
cylinder assemblies to 28,874.
    We also determined that a replacement cost based on a pro-rated
life of the cylinder assemblies more accurately reflects the true cost
of replacing the cylinder assemblies. In the NPRM, we used $1,700 per
cylinder assembly for the entire affected cylinder assembly population.
We recalculated the total value for loss of the part based on a pro-
rated estimate of usage for the cylinder assembly population over their
current accumulated time in service. This recalculated loss is
$19,867,882 for the entire affected cylinder assembly population.
    Finally, since we issued the NPRM, we eliminated those inspections
and their associated cost from this SNPRM. For further information on
the estimated cost of this AD, please see our Initial Regulatory
Flexibility Analysis (IRFA) in the text of this SNPRM. We did not
withdraw the NPRM.

Miscellaneous Comments to the NPRM

    We received several comments on the rulemaking process, including
several who supported the NPRM (78 FR 48828, August 12, 2013) as
proposed. Several commenters stated that hundreds of failures of the
affected cylinder assemblies had been reported to the FAA and ECi.
    We thank the commenters for their participation in the rulemaking
process.

Summary of Changes to the NPRM

    First, we removed the 50 hour repetitive inspection requirement in
the NPRM (78 FR 48828, August 12, 2013). We did so because we
determined that the inspection, compression test, and leak check
proposed by the NPRM was not effective in detecting cracked cylinders.
Based on further review of service information, we determined that a
compression test and leak check will not identify a crack until the
crack has propagated all the way through the cylinder wall to some
detectable location. Therefore, we are relying on the phased removal of
the cylinders along with annual or 100-hour inspections already
required by other regulations to provide an adequate level of safety.
    We eliminated the requirement to report details of all cylinder
assemblies removed per the requirements of the AD to the FAA. This
information is no longer needed since we will rely on our established
reporting channels, e.g., Service Difficulty Reporting (SDR) and
Malfunction/Defect (M/D) reports, to report future cylinder head
failures.
    We reduced the estimated population of affected cylinder assemblies
from 36,000 to 28,874.
    We used a pro-rated loss of cylinder life which more accurately
reflects the cost of replacing the affected cylinder assemblies.
    We removed the cost of inspection from this SNPRM since the
recurrent visual inspections and compression/leak tests proposed by the
NPRM were ineffective in detecting the unsafe condition.
    We changed the compliance paragraphs by removing references to
``Group A'' (serial numbers (S/Ns) between 1 and 33696) and ``Group B''
(S/Ns between 33697 and 61176). We determined that TIS and serial
number (S/N) are sufficient to identify and correct the suspect
cylinder assembly population.
    We modified the compliance schedule for removal of affected
cylinder assemblies from 500 or 1,000 operating

hours for all affected cylinder assemblies to a phased removal schedule
based on total hours TIS since new. We determined that information
submitted by commenters to the proposed rule justified a phased
drawdown of the assemblies from service.
    Finally, we specified in this SNPRM that overhauled cylinder
assemblies should be removed within 80 hours after the effective date
of this AD. We concluded that overhauling of the cylinder assembly does
not diminish the fatigue damage that has already accumulated in the
cylinder head.

FAA's Determination

    We are proposing this SNPRM because we evaluated all the relevant
information and determined the unsafe condition described previously is
likely to exist or develop in other products of the same type design.
Certain changes described above revise the scope of the NPRM (78 FR
48828, August 12, 2013). As a result, we have determined that it is
necessary to reopen the comment period to provide additional
opportunity for the public to comment on this SNPRM.

Proposed Requirements of This SNPRM

    This SNPRM would require removal of the affected cylinder
assemblies, including overhauled cylinder assemblies, according to a
phased removal schedule.

Costs of Compliance

    We estimate that this proposed AD would affect about 5,000 CMI
models IO-520, TSIO-520, IO-550, and IOF-550 reciprocating engines and
all other CMI engine models approved for the use of CMI models 520 and
550 cylinder assemblies (such as the CMI model 470 when modified by
STC), installed on airplanes of U.S. registry. The average labor rate
is $85 per hour. We estimate that about 18 hours would be required to
replace all six cylinder assemblies during overhaul maintenance. We
estimate the pro-rated value of the cost of replacement of six cylinder
assemblies to be about $4,202 per engine. Based on these figures, we
estimate the total cost of this proposed AD to U.S. operators to change
all ECi cylinder assemblies to be $28,660,000. Our cost estimate is
exclusive of possible warranty coverage.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation Programs''
describes in more detail the scope of the Agency's authority.
    We are issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: ``General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a
principle of regulatory issuance that agencies shall endeavor,
consistent with the objective of the rule and of applicable statutes,
to fit regulatory and informational requirements to the scale of the
business, organizations, and governmental jurisdictions subject to
regulation.'' To achieve that principle, the RFA requires agencies to
solicit and consider flexible regulatory proposals and to explain the
rationale for their actions. The RFA covers a wide range of small
entities, including small businesses, not-for-profit organizations and
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the agency determines that it will, the
agency must prepare a regulatory flexibility analysis as described in
the Act.
    This proposed rule would have a significant impact on a substantial
number of small entities of part 135 operators and smaller air services
businesses.
    The U.S. Small Business Administration (SBA) classifies businesses
as small based on size standards, typically expressed as number of
employees. The FAA identified 609 part 135 operators that meet the SBA
definition of a small entity (entities with 1,500 or fewer employees)
which would be affected by this proposed rule. Of these 609, the FAA
identified 209 small part 135 operators on which the rule would have a
significant economic impact. We consider this a substantial number of
small entities. In addition, we estimate that more than 2,000 smaller
air services businesses would be affected by this proposed rule. This
business segment also has a substantial number of small entities. The
FAA is unaware of the assets or financial resources of these
businesses. The FAA requests comments from these businesses regarding
their economic impact.
    The FAA estimates the compliance cost from this AD to be the sum of
the replacement cost per aircraft, plus the loss of use due to earlier
replacement, plus minor paperwork cost. The labor cost to replace all
six cylinder assemblies is the average labor rate $85 per hour
multiplied by the estimated 18 hours to complete the task.
    The FAA believes that a pro-rated value of the replacement cost of
the cylinder assemblies is more accurate and reflects on the true cost
to replacing the cylinder assemblies. This AD would result in a loss-
of-use as some cylinder assemblies would be replaced sooner than
current practice. This AD requires removal of the cylinder assemblies
at an average of 1,000 hours instead of at the average TBO of 1,700
hours. This means that the allowable life is only 1,000 of the original
1,700 hours, or at 58.82% of the current life. Therefore the life value
that is lost equals 0.4118 (1.0-0.5882). We estimate the pro-rated loss
of life value for six cylinder assemblies to be about $4,200 per engine
(1,700 x 6 x .4118). The loss-of-use expense implicitly includes the
earlier purchase of the replacement cylinder assemblies.
    Therefore the AD cost per aircraft equals the labor costs of $1,530
and the loss-of-service cost of $4,202, or about $6,000. Based on the
number of aircraft owned by the operators impacted, total compliance
costs range between $6 thousand to $525 thousand per small entity
encompassing one to eighty-eight aircraft.
    To determine whether the compliance cost would be a significant
economic impact, we measured the annualized compliance cost relative to
the value of the aircraft. The estimated value of their aircraft ranges
between $22 thousand to $21 million. Using the preceding information,
the FAA estimates that their ratio of annualized cost to asset value is
higher than 5 percent for many of these operators. Based on this
information the FAA decided that the rule would have a significant
economic impact on a substantial number of entities. Therefore, we have
performed a regulatory flexibility analysis for these small entities.

Initial Regulatory Flexibility Analysis

    Under Section 603(b) of the RFA, the initial analysis must address:
    (1) Description of reasons the agency is considering the action;
    (2) Statement of the legal basis and objectives for the proposed
rule;

    (3) Description of the record keeping and other compliance
requirements of the proposed rule;
    (4) All federal rules that may duplicate, overlap, or conflict with
the proposed rule;
    (5) Description and an estimated number of small entities to which
the proposed rule will apply; and
    (6) Describe alternatives considered.

Description of Reasons the Agency is Considering the Action

    This proposed AD was prompted by failure reports of multiple
cylinder head-to-barrel separations and cracked and leaking aluminum
cylinder heads. This AD would apply to certain Airmotive Engineering
Corp. replacement PMA cylinder assemblies marketed by ECi, used on CMI
model 520 and 550 reciprocating engines, and all other engine models
approved for the use of CMI models 520 and 550 cylinder assemblies,
such as the CMI model 470 when modified by STC.

Description and an Estimated Number of Small Entities to Which the
Proposed Rule Would Apply

    We estimate that this proposed AD would affect about 5,000
Continental Motors, Inc. models IO-520, TSIO-520, IO-550, and IOF-550
reciprocating engines and all other engine models approved for the use
of CMI models 520 and 550 cylinder assemblies (such as the CMI model
470 when modified by STC), installed on airplanes of U.S. registry.
    The FAA will affect 609 part 135 operators and more than 2,000 air
service businesses for which the rule will have an economic impact. The
affected entities fly fixed wing aircraft; employ less than 1,500
employees; and conduct a variety of air services such as fly passengers
and cargo for hire. We estimate that the small part 135 operators have
assets valued between $22 thousand to $21 million (range of 1 to 88
aircraft).

Description of the Recordkeeping and Other Compliance Requirements of
the Proposed Rule

    Public reporting for this collection of information is estimated to
be approximately 5 minutes per response at an hourly wage rate of $85
per hour, including the time for reviewing instructions, completing and
reviewing the collection of information. The paperwork cost for them is
between $7 and $616.

All Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule

    The FAA is unaware of any Federal rules that duplicate, overlap, or
conflict with this rule.

Description of Alternatives Considered

    The FAA received comments concerning this AD. Some commenters
requested withdrawal of this NPRM because of excessive cost with only
negligible safety gains. In response to comments about problems with
repetitive compression/soap test, the FAA agrees that these tests are
not reliable and the costs associated with such ongoing tests outweigh
the safety benefit. This SNPRM has removed the requirement for
repetitive compression/soap inspection tests. We also considered these
following alternatives:
    (1) Do nothing--This option is not acceptable due to the number of
failures of ECi cylinder assemblies and the consequences of the
failures.
    (2) Periodic inspections only (no forced removals)--Though the NTSB
recommends this option, the service history has shown that such
inspections may not reliably detect existing cracks and the rate of
crack growth to separation is unknown and variable.
    (3) Forced removal with periodic inspections--As stated above, such
periodic inspections may not reliably detect cracks and the rate of
crack growth to separation is unknown and variable.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979),
    (3) Will not affect intrastate aviation in Alaska to the extent
that it justifies making a regulatory distinction, and
    (4) Will have a significant economic impact, positive or negative,
on a substantial number of small entities under the criteria of the
Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13  [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

Continental Motors, Inc. (formerly Teledyne Continental Motors,
Inc., formerly Continental): Docket No. FAA-2012-0002; Directorate
Identifier 2011-NE-42-AD.

(a) Comments Due Date

    We must receive comments by February 23, 2015.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to all Continental Motors, Inc. (CMI) model 520
and 550 reciprocating engines, and to all other CMI engine models
approved for the use of model 520 and 550 cylinder assemblies such
as the CMI model 470 when modified by supplemental type certificate
(STC), with Airmotive Engineering Corp. replacement parts
manufacturer approval (PMA) cylinder assemblies, marketed by Engine
Components International Division (hereinafter referred to as ECi),
part number (P/N) AEC631397, with ECi Class 71 or Class 76, serial
number (S/N) 1 through S/N 61176, installed.

(d) Unsafe Condition

    This AD was prompted by multiple failure reports of cylinder
head-to-barrel separations and cracked and leaking aluminum cylinder
heads. We are issuing this AD to prevent failure of the cylinder
assemblies, which could lead to failure of the engine, in-flight
shutdown, and loss of control of the airplane.

(e) Compliance

    Comply with this AD within the compliance times specified,
unless already done.
    (1) Review the engine maintenance records to determine if any
affected cylinder assemblies are installed.
    (2) If you cannot determine based on review of engine
maintenance records if any affected cylinder assemblies are
installed, comply with paragraph (e)(4) of this AD.
    (3) If you do not have any of the affected ECi cylinder
assemblies installed on your engine, no further action is required.

(4) Cylinder Identification and Serial Number Location

    (i) Check the cylinder assembly P/N and Class number. The ECi
cylinder assembly, P/N AEC631397, Class 71 or Class 76, is stamped
on the bottom flange of the cylinder barrel. Guidance on the P/N and
Class number description and location can be found in ECi Service
Instruction No. 99-8-1, Revision 9, dated February 23, 2009.
    (ii) If you cannot see the cylinder assembly P/N when the
cylinder assembly is installed on the engine, you may use the
following alternative method of identification:
    (A) Remove the cylinder assembly rocker box cover.
    (B) Find the letters ECi, cast into the cylinder head between
the valve stems.
    (C) Check the cylinder head casting P/N. Affected cylinder
assemblies have the cylinder head casting P/N, AEC65385, cast into
the cylinder head between the valve stems.
    (D) Find the cylinder assembly S/N as specified in paragraph
(e)(4)(iii) or (e)(4)(iv) of this AD, as applicable.
    (iii) For ECi cylinder assemblies, P/N AEC631397, manufactured
through 2008, find the cylinder assembly S/N stamped on the intake
port boss two inches down from the top edge of the head.
    (iv) For ECi cylinder assemblies, P/N AEC631397, manufactured on
or after January 1, 2009, find the cylinder assembly S/N stamped
just below the top edge of the head on the exhaust port side.

(5) Removal From Service

    (i) For any affected cylinder assembly with 680 or fewer
operating hours time-in-service (TIS) since new on the effective
date of this AD, remove the cylinder assembly from service before
reaching 1,000 operating hours TIS since new.
    (ii) For any affected cylinder assembly with more than 680
operating hours TIS since new and 1,000 or fewer operating hours TIS
since new on the effective date of this AD, remove the cylinder
assembly from service within the next 320 operating hours TIS or
within 1,160 operating hours TIS since new, whichever occurs first.
    (iii) For any affected cylinder assembly with more than 1,000
operating hours TIS since new on the effective date of this AD,
remove the cylinder assembly from service within the next 160
operating hours or at next engine overhaul, whichever occurs first.
    (iv) For any affected cylinder assembly that has been
overhauled, remove the cylinder assembly from service within the
next 80 operating hours TIS after the effective date of this AD.

(f) Installation Prohibitions

    After the effective date of this AD:
    (1) Do not repair, or reinstall onto any engine, any cylinder
assembly removed per this AD.
    (2) Do not install any affected ECi cylinder assembly that has
been overhauled, into any engine.
    (3) Do not install any engine that has one or more affected
overhauled ECi cylinder assemblies, onto any aircraft.
    (4) Do not return to service any aircraft that has an engine
installed with an ECi cylinder assembly subject to this AD, if the
cylinder assembly has 1,000 or more operating hours TIS.

(g) Alternative Methods of Compliance (AMOCs)

    The Manager, Special Certification Office, may approve AMOCs for
this AD. Use the procedures found in 14 CFR 39.19 to make your
request.

(h) Related Information

    (1) For more information about this AD, contact Jurgen E.
Priester, Aerospace Engineer, Special Certification Office, FAA,
Rotorcraft Directorate, 2601 Meacham Blvd., Fort Worth, TX 76193;
phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>    (2) For ECi Service Instruction No. 99-8-1, Revision 9, dated
February 23, 2009, which is not incorporated by reference in this
AD, contact Engine Components International Division, 9503 Middlex
Drive, San Antonio, TX 78217; phone:<PHONE_NUMBER>; Internet: http://www.eci.aero/pages/tech_svcpubs.aspx.
    (3) You may view this service information at the FAA, Engine &
Propeller Directorate, 12 New England Executive Park, Burlington,
MA. For information on the availability of this material at the FAA,
call<PHONE_NUMBER>.

    Issued in Burlington, Massachusetts, on December 23, 2014.
Colleen M. D'Alessandro,
Assistant Directorate Manager, Engine & Propeller Directorate, Aircraft
Certification Service.
[FR Doc. 2015-00152 Filed 1-7-15; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: January 6, 2010 (Volume 75, Number 3)]
[Rules and Regulations]
[Page 754-759]
[DOCID:fr06ja10-8]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2009-1080]
RIN 1625-AA11, 1625-AA00

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.

-----------------------------------------------------------------------

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.T09-1004 is removed,
effective January 6, 2010. Section 165.923 is suspended, and a new
temporary section, Sec.  165.T09-1080, is added in the CFR effective
January 6, 2010 until 5 p.m. on December 1, 2010. This rule is
effective with actual notice for purposes of enforcement beginning at 5
p.m. on December 18, 2009.
    Comment Date: Comments and related material must reach the Docket
Management Facility on or before February 5, 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:<PHONE_NUMBER>.
    (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<PHONE_NUMBER>. 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<PHONE_NUMBER>. If you have questions on
viewing the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone<PHONE_NUMBER>.

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\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://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 on or before January 29, 2009 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

    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).

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. 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 energize the
barrier to two-volts per inch without prior testing.
    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. The Coast Guard and USACE developed regulations and safety
guidelines, with stakeholder input, which addressed the risks and
hazards associated with operating the barriers at the one-volt per inch
level. These regulations were published in 33 CFR Sec.  165.923, 70 FR
76692 (Dec 28, 2005) and in a series of temporary final rules published
in the Federal Register: 71 FR 4488 (Jan 27, 2006); 71 FR 19648 (Apr
17, 2006); 73 FR 33337 (Jun 12, 2008); 73 FR 37810 (Jul 2, 2008); 73 FR
45875 (Aug 7, 2008); and 73 FR 63633 (Oct 27, 2008).
    In early August, 2009, the USACE notified the Coast Guard that it
planned to immediately increase the voltage of Barrier IIA to two-volts
per inch on a full-time basis starting August 17, 2009. Both Barrier
IIA and Barrier I will operate at the same time; hence, Barrier I will
provide a redundant back-up to Barrier IIA.
    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. The USACE began safety testing in
consultation with the U.S. Coast Guard on August 17, 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. Because the
USACE decided that the voltage and operating parameters had to be
immediately increased prior to the completion of safety testing, the
USCG determined that temporary closure of the canal to all vessels
through a safety zone was necessary until the risks were better
understood. This resulted in successive temporary final rules that
suspended the prior temporary interim rule. These temporary final rules
enacting safety zones were published in the Federal Register on August
26, 2009 (74 FR 43055), September 2, 2009 (74 FR 45318), September 29,
2009 (74 FR 49815), and November 13, 2009 (74 FR 58545).
    Testing and analysis of the risks to persons and vessels are
ongoing. Until those risks are well understood, immediate action is
needed to prevent injury to people and vessels from effects of Barrier
IIA. As a result, it is contrary to the public interest to provide a
full notice and comment period prior to implementation of, or 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. This discovery indicates that Asian carp are
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, including barges, have taken on water south of
the barrier and transported it across the fish barriers, either
knowingly or unknowingly, 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. Immediate action is needed to halt this
practice, thereby closing down this possible bypass vector. For this
reason, providing a full notice and comment period and delaying the
effective date for the safety zone including 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 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 detects the
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 removes 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, 2010. This rule places an RNA
on all waters located adjacent to, and over, the electrical dispersal
barriers on the CSSC between mile marker 295.0 (approximately 1.1 miles
south of the Romeo Road Bridge) and mile marker 297.5 (approximately
1.3 miles northeast of the Romeo Road Bridge). It also places a safety
zone over a smaller portion of these same waters. 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, 2010 in order to allow sufficient
time for the Coast Guard to publish a final rule based on comments
received from the public in response to this temporary interim rule. At
the same time, the Coast Guard expects the USACE to energize barrier
IIB, which is likely to require additional safety testing. This RNA and
safety zone are also required during that testing period to prevent the
possible loss of life and damage to property.
    The RNA encompasses all waters of the Chicago Sanitary and Ship
Canal located between mile marker 295.0 (approximately 1.1 miles south
of the Romeo Road Bridge) and mile marker 297.5 (approximately 1.3
miles northeast of the Romeo Road Bridge). The requirements placed on
all vessels 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 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.
    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. The public can
obtain information concerning information about the RNA and safety zone
by contacting the Captain of the Port Lake Michigan via the Coast Guard
Sector Lake Michigan Command Center at<PHONE_NUMBER>.
    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.
    The Captain of the Port Sector Lake Michigan retains the authority
to permit vessels to enter the safety zone. As safety testing results
continue to be analyzed and become available, the Captain of the Port
Sector Lake Michigan will make every effort to permit vessels to pass
for which there is a decrease of known risk of injury or property
damage. If vessels wish to enter the safety zone they must receive
permission from the Captain of the Port Lake Michigan to do so and must
follow all orders from the Captain of the Port Sector Lake Michigan or
her designated representative while in the zone.
    If, for any reason, the safety zone or RNA are at any time
suspended, 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 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.
    This rule will affect commercial traffic transiting the electrical
dispersal fish barrier system and surrounding waters. The ACOE
maintains data about the commercial vessels using the Lockport Lock and
Dam, which provides access to the proposed RNA. According to ACOE 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 ACOE data, recreational vessels made up 66 percent of the
usage of the Lockport Lock and Dam in 2007. Operation and maintenance
of the ACOE 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 ACOE. 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 ACOE. 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. 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 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

    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 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.T09-1004  [Removed]

0
2. Remove Sec.  165.T09-1004.

Sec.  165.923  [Suspended]

0
3. Suspend Sec.  165.923 from January 6, 2010 until 5 p.m. on December
1, 2010.

0
4. Add new temporary Sec.  165.T09-1080 as follows:

Sec.  165.T09-1080  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
located approximately 0.51 miles 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<PHONE_NUMBER>.
    (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 295.0 (approximately
1.1 miles south of the Romeo Road Bridge) and mile marker 297.5
(approximately 1.3 miles northeast of the Romeo Road Bridge).
    (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.
    (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.
    (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 18, 2009, until 5 p.m. on
December 1, 2010. This regulated navigation area and safety zone are
enforceable with actual notice by Coast Guard personnel beginning
December 18, 2009, until January 6, 2010.
    (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: December 18, 2009.
Peter V. Neffenger
Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
[FR Doc. E9-31350 Filed 1-5-10; 8:45 am]

BILLING CODE 9110-04-P