[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]
[Rules and Regulations]
[Pages 70222-70225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27560]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG-2013-0907]
RIN 1625-AA11
Regulated Navigation Area; Upper Mississippi River Between Mile
0.0 and 109.9; Cairo, IL to Chester, IL
AGENCY: Coast Guard, DHS.
ACTION: Temporary Final Rule.
-----------------------------------------------------------------------
SUMMARY: The Coast Guard is establishing a temporary regulated
navigation area (RNA) for all waters of the Upper Mississippi River
(UMR) between miles 0.0 and 109.9. This RNA is needed to protect
persons, property, and infrastructure from potential damage and safety
hazards associated with subsurface rock removal in the Upper
Mississippi River. Any deviation from the conditions and requirements
put into place are prohibited unless specifically authorized by the
cognizant Captain of the Port (COTP) Ohio Valley or his designated
representatives.
DATES: This rule is effective without actual notice from November 25,
2013 until April 12, 2014. For the purposes of enforcement, actual
notice will be used from the date the rule was signed, November 4,
2013, until November 25, 2013.
ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2013-0907]. 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 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email LT Dan McQuate, U.S. Coast Guard; telephone 270-442-1621,
email [email protected]. If you have questions on viewing or
submitting material to the docket, call Barbara Hairston, Program
Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Acronyms
AIS Automated Information System
COTP Captain of the Port
DHS Department of Homeland Security
FR Federal Register
MM Mile Marker
MSU Marine Safety Unit
M/V Motor Vessel
NPRM Notice of Proposed Rulemaking
RIAC River Industry Action Committee
UMR Upper Mississippi River
USACE United States Army Corps of Engineers
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. On July 18, 2013 the U.S. Army Corps of
Engineers (USACE) St. Louis District contacted Coast Guard Marine
Safety Unit (MSU) Paducah, KY with notification that a contract had
been issued for subsurface rock removal in the Thebes, IL area. The
rock removal project is required to assist navigation through the
channel during certain low water and river conditions and can only be
completed during certain environmental conditions. The environmental
window for the rock removal project is November 1, 2013 to April 12,
2014, and the project was not expected to require additional vessel
restrictions and requirements possibly leading to river closures as the
work areas were on the far outer edge, or totally outside of the
navigation channel. On August 27, 2013, MSU Paducah participated in a
conference call with USACE St. Louis and River Industry Action
Committee (RIAC) leadership concerning the rock removal project. RIAC
is an association of companies and organizations who are stakeholders
in the commercial industry on the inland rivers. During this call,
based on low water, river conditions, industry use and concerns, the
Coast Guard determined that implementing vessel restrictions and
requirements and possible river closures may be necessary when the rock
removal contractor is working in specific locations for safety
purposes. The RIAC leadership participating on this call agreed that
these safety measures are necessary. Similar safety measures were
implemented by the Coast Guard for this area from December 1, 2012
through March 31, 2013 based on low water conditions (77 FR 15850).
On October 17, 2013, MSU Paducah personnel attended a meeting at
the USACE Jackson, MO field office with USACE personnel, the contractor
for this project, and numerous RIAC member companies. During this
meeting the contractor for the project expressed their safety concerns
and referred to a clause in their contract that they interpreted as
allowing for river closures necessary for safety reasons. The Coast
Guard determined that the best course of action is for the contractor
to initiate work with normal vessel traffic transiting to determine if/
when and what additional safety measures are required during the rock
removal project. These safety measures may include closures and/or
vessel restrictions and requirements, including one-way traffic, tow
size, designated vessel reporting locations, etc. as necessary when the
contractor is working in certain locations for safety purposes. In
addition, use of the
[[Page 70223]]
Automated Information System (AIS) will be vital for the Coast Guard to
maintain situational awareness while the restrictions and requirements
are in place and to help facilitate the clearing of vessel queues
following river closures. These vessel restrictions and requirements
are vital to maintaining safe navigation on the Upper Mississippi River
(UMR) during the rock removal project and to resuming safe navigation
as quickly as possible following river closures. As a result, the Coast
Guard is implementing the RNA to protect mariners and vessels. The
timing of the actual notice of definitive need for vessel restrictions
does not allow for the time required to complete the NPRM process.
Immediate action establishing this RNA is needed to protect persons and
property from the safety hazards associated with the subsurface rock
removal on the Upper Mississippi River. Delaying the effective date for
this RNA to complete the NPRM process would be contrary to the public
interest and would unnecessarily delay the rock removal project.
Broadcast Notices to Mariners (BNM) and information sharing with RIAC
will update mariners of the restrictions, requirements, and enforcement
periods throughout the entire RNA, or at specific areas within the RNA.
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 contrary to public
interest because immediate action is needed to protect persons,
property and infrastructure from the potential damage and safety
hazards associated with subsurface rock removal operations on the UMR.
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 RNAs.
The purpose of this RNA is to protect persons and vessels while
subsurface rock removal operations are ongoing on the UMR from mile
38.0 to mile 46.0. The removal operations pose significant safety
hazards to vessels and mariners operating on the UMR. Establishing the
RNA to extend from mile 0.0 to mile 109.9 is necessary for the Coast
Guard to maintain situational awareness of vessels operating in the
UMR, and, at the request of RIAC, assist in facilitating the clearing
of vessel queues following closures or restrictions of the river from
mile 38.0 to mile 46.0. For these reasons, the Coast Guard is
establishing the RNA to implement various waterway operational
controls, including specific restrictions and requirements, for vessels
transiting between mile 0.0 and 109.9 on the UMR.
C. Discussion of the Temporary Final Rule
The Coast Guard is establishing a temporary RNA for all vessel
traffic on the UMR between mile 0.0 and mile 109.9, extending the
entire width of the river. Within this RNA various restrictions and
requirements may be put into effect based on the actual or planned
subsurface rock removal operations between mile 38.0 and mile 46.0.
These restrictions and requirements will be the minimum necessary to
protect persons, property, and infrastructure from the potential
hazards associated with low water and subsurface rock removal and may
include, but are not limited to, river closures, tow size, tow
configuration, vessel/barge draft, assist vessels, speed, vessel
traffic reporting, hours of transit, one way traffic, and the use of
AIS if fitted onboard a vessel. Enforcement times and specific
restrictions and requirements will be announced via Broadcast Notice to
Mariners (BNM), through outreach with the RIAC, the Local Notice to
Mariners (LNM) and through other public notice. Any deviation from the
requirements put into place are prohibited unless specifically
authorized by the COTP Ohio Valley, or a designated representative.
Deviations for the specific restrictions and regulations will be
considered and reviewed on a case-by-case basis. The COTP Ohio Valley
may be contacted by telephone at 1-800-253-7465 or can be reached by
VHF-FM channel 16.
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. This rule establishes a
temporary RNA for vessels on all waters of the UMR from mile 0.0 to
mile 109.9. Notifications of enforcement times of control measures and
requirements put into effect for the entire RNA, or specific areas
within the RNA, will be communicated to the marine community via BNM,
through outreach with RIAC, and through Local Notice to Mariners (LNM).
The impacts on navigation will be limited to ensuring the safety of
mariners and vessels associated with hazards presented by USACE
contractor operations involving subsurface rock removal, and the safe
and timely resumption of vessel traffic following any river closures or
restrictions associated with subsurface rock removal operations.
Operational controls under this RNA will be the minimum necessary to
protect mariners, vessels, the public, and the environment from known
or perceived risks.
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 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.
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 UMR, from November 4, 2013 to April 12, 2014. This RNA will not
have a significant economic impact on a substantial number of small
entities because this rule allows for the intermittent passing of
vessels. Traffic in this area is limited to almost entirely
recreational vessels and commercial towing vessels subject to noticed
restrictions and requirements. Notifications to the marine community
will be made through BNM, LNM, and communications with RIAC. Notices of
changes to the RNA and effective times will also be made. Deviation
from the restrictions may be requested from the COTP or designated
representative and will be considered on a case-by-case basis.
[[Page 70224]]
3. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we want 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 will not call for a 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 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. We have analyzed this rule under that Order and determined
that this rule 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 cause 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
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 determined
that this action is one of a category of actions that do not
individually or cumulatively have a significant effect on the human
environment. 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
recordkeeping 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, 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.
0
2. A new temporary Sec. 165.T08-0907 is added to read as follows:
Sec. 165.T08-0907 Regulated Navigation Area; Upper Mississippi River
between mile 0.0 and 109.9, Cairo, IL to Chester, IL.
(a) Location. The following area is a regulated navigation area
(RNA): all waters of the Upper Mississippi River between mile 0.0 and
mile 109.9, Cairo, IL to Chester, IL, extending the entire width of the
river.
(b) Effective dates. This RNA is effective and enforceable with
actual notice from November 4, 2013 through April 12, 2014.
(c) Regulations. (1) The Captain of the Port (COTP) Ohio Valley may
prescribe, for all or specific portions of the RNA, periods of
enforcement and minimum operational requirements necessary to preserve
safe navigation on the Upper Mississippi River during subsurface rock
removal operations, including, but not limited to, the required use of
assist vessels, vessel traffic reporting, and Automatic Information
Systems when fitted onboard a vessel; and restrictions on the
following:
(i) Tow size;
(ii) Tow configuration;
(iii) Vessel/barge draft;
(iv) Speed;
(v) Under keel clearance;
(vi) Hours of transit; and
(vii) One way traffic.
(2) All persons and vessels must comply with any requirement
[[Page 70225]]
prescribed under paragraph (c)(1) of this section.
(3) Persons or vessels may request an exception from any
requirement prescribed under paragraph (c)(1) of this section from the
COTP Ohio Valley or a designated representative who may be a
commissioned, warrant, or petty officer of the Coast Guard. The COTP
Ohio Valley may be contacted by telephone at 1-800-253-7465 or on VHF-
FM channel 16.
(d) Enforcement. The COTP Ohio Valley will notify the public of the
specific requirements prescribed under paragraph (c)(1) of this section
and of the times when those requirements will be enforced or when
enforcement will be suspended, using means designed to ensure maximum
effectual notice including, but not limited to, broadcast notices to
mariners (BNM) and communications through the River Industry Action
Committee.
Dated: November 4, 2013.
K.S. Cook,
Rear Admiral, U.S. Coast Guard, Eighth District Commander.
[FR Doc. 2013-27560 Filed 11-22-13; 8:45 am]
BILLING CODE 9110-04-P