[Federal Register Volume 77, Number 249 (Friday, December 28, 2012)]
[Rules and Regulations]
[Pages 76408-76411]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31136]


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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2012-0998]
RIN 1625-AA00


Safety Zone, Upper Mississippi River MM 35.0 to MM 55.0; Thebes, 
IL and Cape Girardeau, MO, and MM 75.0 to MM 85.0; Grand Tower, IL

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary safety zone for 
all waters of the Upper Mississippi River, extending the entire width 
between miles 35.0 to 55.0, and miles 75.0 to 85.0 from December 15, 
2012 until March 31, 2013. This safety zone

[[Page 76409]]

is needed to protect persons, property and infrastructure from the 
potential damage and safety hazards associated with contractor 
operations for the US Army Corps of Engineers to remove underwater rock 
pinnacles from the Upper Mississippi River. Removal of the underwater 
rock pinnacles is vital to ensuring the safe navigation of vessels in 
these stretches of river in low water situations. Entry into this zone 
is prohibited unless specifically authorized by the Captain of the Port 
Ohio Valley or a designated representative.

DATES: This rule is effective in the CFR on December 28, 2012 through 
March 31, 2013. This rule is effective with actual notice for purposes 
of enforcement on December 15, 2012. This rule will remain in effect 
through March 2013.

ADDRESSES: Documents mentioned in this preamble are part of docket 
USCG-2012-0998. To view documents mentioned in this preamble as being 
available in the docket, go to http://www.regulations.gov, type the 
docket number in the ``SEARCH'' box and click ``SEARCH.'' Click on Open 
Docket Folder on the line associated with this rulemaking. You may also 
visit 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 9:00 a.m. and 5:00 
p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or email Lieutenant Dan McQuate, Marine Safety 
Unit Paducah Waterways Management Branch, U.S. Coast Guard; telephone 
270-442-1621, email: Daniel.J.McQuate@uscg.mil. If you have questions 
on viewing or submitting material to the docket, call Renee V. Wright, 
Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking
USACE United States Army Corps of Engineers
RIAC River Industry Action Committee

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior 
notice and opportunity to comment pursuant to authority under section 
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision authorizes an agency to issue a rule without prior notice and 
opportunity to comment when the agency for good cause finds that those 
procedures are ``impracticable, unnecessary, or contrary to the public 
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good 
cause exists for not publishing a notice of proposed rulemaking (NPRM) 
with respect to this rule.
    The US Army Corps of Engineers (USACE) originally planned to have a 
contractor remove underwater rocks in the Thebes, IL and Grand Tower, 
IL areas on the Upper Mississippi River beginning in mid-February 2013. 
The operation was planned to occur in the UMR from mile 38.0 to mile 
46.0, and mile 78.0 to mile 80.0. This operation also included the 
loading of explosives onto vessels at any number of facilities in Cape 
Girardeau, MO, Thebes, IL, and/or Grand Tower, IL.
    The Coast Guard was planning to publish a notice of proposed 
rulemaking for this zone. However, on Wednesday December 5, 2012, the 
USACE St. Louis District notified the Coast Guard that due to extreme 
low water, and the role that would play in restricting vessel drafts on 
the Upper Mississippi River in Thebes, IL, they were able to award a 
contract to begin rock removal operations no later than December 15, 
2012, and this removal operation could continue to March 31, 2013. 
Therefore, there is not sufficient time to publish an NPRM and receive 
public comment before this safety zone would be needed to protect the 
public from the hazards associated with the removal operations. 
Delaying this rulemaking to provide a comment period before 
implementing the necessary safety zone would be impracticable and 
contrary to the public interest because it would delay the immediate 
action needed to protect persons, property and infrastructure from the 
potential damage and safety hazards associated with the USACE 
contractors underwater rock removal operations.
    For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard 
finds that good cause exists for making this rule effective less than 
30 days after publication in the Federal Register. Providing 30 days 
notice and delaying its effective date would be impracticable and 
contrary to public interest because immediate action is needed to 
protect persons, property and infrastructure from the potential damage 
and safety hazards associated with the USACE contractors underwater 
rock removal operations.

B. Basis and Purpose

    The legal basis and authorities for this rule are found in 33 
U.S.C. 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; Public Law 107-295, 116 Stat. 
2064; and Department of Homeland Security Delegation No. 0170.1, which 
collectively authorize the Coast Guard to establish and define 
regulatory safety zones.
    The purpose of this safety zone is to protect persons, property and 
infrastructure from the potential damage and safety hazards associated 
with contractor blasting operations for the USACE to remove underwater 
rock pinnacles from the Upper Mississippi River. Removal of the 
underwater rock pinnacles is vital to ensuring the safe navigation of 
vessels in these stretches of river in low water situations. Without 
this safety zone the public could be placed in danger during the 
loading, preparation to set, and detonation of explosives being used 
during this operation, and the removal of the debris following the 
blasting operations.

C. Discussion of the Rule

    The Coast Guard is establishing a temporary safety zone for all 
vessels on the Upper Mississippi River between miles 35.0 and 55.0, and 
miles 75.0 and 85.0 from December 15, 2012 until March 31, 2013. The 
USACE has contracted workers to blast underwater rock pinnacles 
throughout these stretches of the river. There is currently no set 
schedule for this operation, so the safety zone will be effective from 
December 15, 2012 until March 31, 2013, while the enforcement times and 
exact mile markers impacted for each closure of this safety zone will 
be coordinated between the Coast Guard, USACE, and the River Industry 
Action Committee (RIAC). Additionally, the Coast Guard will provide 
advanced notice of enforcement periods via broadcast notice to mariners 
and through coordination with the RIAC. During the enforcement period, 
entry into this zone will be prohibited to all vessels and persons 
unless specifically authorized by the Captain of the Port (COTP) Sector 
Ohio Valley or a designated representative. The COTP Sector Ohio Valley 
will consider entry into and transit through the safety zone on a case-
by-case basis. Any exceptions to these operational restrictions will 
require authorization by the COTP Ohio Valley or a designated 
representative. The COTP or a designated representative may be 
contacted by telephone at 502-779-5422.

[[Page 76410]]

D. Regulatory Analyses

    We developed this rule after considering numerous statutes and 
executive orders related to rulemaking. Below we summarize our analyses 
based on a number of these statutes or executive orders.

1. Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f) 
of Executive Order 12866, Regulatory Planning and Review, as 
supplemented by Executive Order 13563, Improving Regulation and 
Regulatory Review, and does not require an assessment of potential 
costs and benefits under section 6(a)(3) of Executive Order 12866 or 
under section 1 of Executive Order 13563. The Office of Management and 
Budget has not reviewed it under those Orders. While stretches of the 
Upper Mississippi River will be closed to all vessel traffic during 
enforcement, this will be for a short period of time. Vessels could 
experience delays throughout this project, but the operations will be 
coordinated to allow intermittent passage of vessels when deemed safe.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as 
amended, requires federal agencies to consider the potential impact of 
regulations on small entities during rulemaking. 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. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule 
will not have a significant economic impact on a substantial number of 
small entities.
    This rule will affect the following entities, some of which may be 
small entities: The owners or operators of vessels intending to transit 
the Upper Mississippi River between miles 35.0 and 55.0, and miles 75.0 
and 85.0 from December 15, 2012 to March 31, 2013. Traffic in this area 
is limited almost entirely to recreational vessels and commercial 
towing vessels. All traffic passage will be prohibited unless 
specifically authorized by COTP Ohio Valley. If this operation is not 
carried out, when the Upper Mississippi River reaches low water levels, 
the rock pinnacles that are being removed in this operation could 
prohibit all vessel traffic from safely transiting the area. Before the 
activation of the safety zone, the Coast Guard will coordinate any 
closures with the USACE and RIAC, and issue broadcast notices to 
mariners to users of the river. This safety zone will not have a 
significant economic impact on a substantial number of small entities. 
Traffic in this area is limited to almost entirely recreational vessels 
and commercial towing vessels.

3. 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 this rule. If the rule would affect your 
small business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance, please 
contact the person listed in the FOR FURTHER INFORMATION CONTACT, 
above.
    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.

4. 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).

5. 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.

6. Protest Activities

    The Coast Guard respects the First Amendment rights of protesters. 
Protesters are asked to contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section to coordinate protest activities so that 
your message can be received without jeopardizing the safety or 
security of people, places or vessels.

7. 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 (adjusted for 
inflation) 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.

8. Taking of Private Property

    This rule will not affect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

9. 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.

10. 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.

11. Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it does not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

12. Energy Effects

    This action is not a ``significant energy action'' under Executive 
order 13211, Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.

13. Technical Standards

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

14. Environment

    We have analyzed this rule under Department of Homeland Security

[[Page 76411]]

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 
this action is one of a category of actions which do not individually 
or cumulatively have a significant effect on the human environment. 
This rule involves restricting vessel traffic on a cumulative 30 mile 
stretch of the UMR to keep waterway users safe during a USACE 
contractor's rock pinnacle removal operations. This rule is 
categorically excluded from further review under paragraph 34(g) of 
Figure 2-1 of the Commandant Instruction. An environmental analysis 
checklist and a categorical exclusion determination will be made 
available as indicated under the ADDRESSES section.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and record 
keeping requirements, Security measures, Waterways.

    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. 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.

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
2. A new temporary Sec.  165.T08-0998 is added to read as follows:


Sec.  165.T08-0998  Safety Zone; Upper Mississippi River MM 35.0 to 
55.0, Thebes, IL and Cape Girardeau, MO, and MM 75.0 to 85.0, Grand 
Tower, IL.

    (a) Location. The following area is a safety zone: All waters of 
the Upper Mississippi River between miles 35.0 and 55.0, extending the 
entire width of the river, and all waters of the Upper Mississippi 
River between miles 75.0 and 85.0, extending the entire width of the 
river.
    (b) Effective dates. This safety zone is effective from December 
15, 2012 to March 31, 2013.
    (c) Enforcement Period and Informational Broadcasts: This safety 
zone will only be enforced for certain periods between the effective 
dates, when the Army Corps of Engineer's contractors are conducting 
rock removal operations. The Captain of the Port (COTP) Ohio Valley or 
designated representatives will provide advance notice to the public of 
the enforcement periods and locations for the safety zone and of any 
changes in the effective period of the safety zone through broadcast 
notices to mariners and through coordination with River Industry Action 
Committee.
    (d) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone by all vessels during 
the enforcement period is prohibited unless authorized by the COTP Ohio 
Valley or a designated representative.
    (2) Vessels requiring entry into or passage through the zone must 
contact the lead vessel on scene, or Coast Guard Sector Ohio Valley on 
VHF-FM channel 13 or 16. The lead vessel on scene will be announced via 
broadcast notice to mariners.
    (3) All persons and vessels shall comply with the instructions of 
the COTP Ohio Valley and designated on-scene patrol personnel. On-scene 
patrol personnel include commissioned, warrant, and petty officers of 
the U.S. Coast Guard.

    Dated: December 12, 2012.
L. W. Hewett,
Captain, U.S. Coast Guard, Captain of the Port Ohio Valley.
[FR Doc. 2012-31136 Filed 12-27-12; 8:45 am]
BILLING CODE 9110-04-P