
[Federal Register: September 1, 2009 (Volume 74, Number 168)]
[Rules and Regulations]               
[Page 45120-45122]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01se09-6]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[USCG-2009-0561]
RIN 1625-AA00

 
Safety Zone; Lower Mississippi River, USACE Revetment, Mile 
Marker 869 to 303

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard is establishing a temporary moving safety zone 
on the Lower Mississippi River from mile marker 869.0 to 303.0, 
extending the entire width of the river, 0.5 mile downriver and 0.5 
mile upriver from the 2009 US Army Corps of Engineers (USACE) revetment 
work throughout the Lower Mississippi River. This moving safety zone is 
needed to protect persons and vessels from the potential safety hazards 
created by the 2009 USACE revetment project. Entry into this zone is 
prohibited to all vessels and mariners unless authorized by the Captain 
of the Port (COTP) Lower Mississippi River or a designated 
representative.

DATES: This rule is effective from September 1, 2009, at 6 a.m. until 6 
p.m. to November 1, 2009. The safety zone has been enforced with actual 
notice since July 4, 2009.

ADDRESSES: Documents indicated in this preamble as being available in 
the docket are part of docket USCG-2009-0561 and are available online 
by going to http://www.regulations.gov, inserting USCG-2009-0561 in the 
``Keyword'' box, and then clicking ``Search.'' They are also available 
for inspection or copying at two locations: the 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays and Sector Lower Mississippi River, 2 Auction Avenue, Memphis, 
Tennessee 38105 between 8 a.m. and 4 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this 
temporary rule, call or e-mail Chief Warrant Officer Ray Bartlett, 
Sector Lower Mississippi River Waterways Management Branch, at (866) 
777-2784, e-mail: Raymond.J.Bartlett@USCG.MIL. If you have questions on 
viewing the docket, call Renee V. Wright, Program Manager, Docket 
Operations, at (202) 366-9826.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this temporary final rule without prior

[[Page 45121]]

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 because publishing an NPRM would be 
impracticable and contrary to public interest. The USACE revetment 
project is an annual event that is needed to ensure bank erosion does 
not affect the proper navigational depth on the Lower Mississippi 
River. One-way traffic around the work barges and possible closures of 
this portion of the river are necessary to ensure vessels are not put 
into jeopardy during the revetment work. Broadcast Notice to Mariners 
(BNM) will update mariners of the progress of the revetment project 
throughout the time period.
    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. Publishing an NPRM and delaying 
its effective date would be contrary to public interest because 
immediate action is needed to protect USACE vessels and personnel.

Background and Purpose

    On 11 June 2009, the USACE notified the COTP Lower Mississippi 
River of their 2009 revetment schedule. The USACE utilizes special 
types of barges, Concrete Mat Laying, rock moving crane, and leveling 
graders along with scoop and pan dredges. Each barge commonly has a M/V 
for maneuvering. Passing arrangements may be made with the USACE M/V 
prior to arriving within 0.5 miles of each work site.
    Several work locations are planned for the 2009 season. Starting on 
July 04, 2009, the scheduled work sites are expected to be within the 
COTP Lower Mississippi River's Area of Responsibility (AOR). Starting 
at mile marker 839.0, and then continuing down river to approximately 
20 other scheduled locations. Each location is predetermined by the 
USACE.
    A hazardous situation could exist for vessels, mariners, and 
spectators in the vicinity of the revetment work sites due to the 
inherently dangerous work involved. A safety zone is needed to protect 
those vessels, mariners, and spectators from the hazards associated 
with revetment work.

Discussion of Rule

    The Coast Guard is establishing a temporary safety zone for all 
waters of the Lower Mississippi River extending the entire width of the 
river from mile marker 869.0 to mile marker 303.0. Entry into this zone 
is prohibited unless specifically authorized by the COTP Lower 
Mississippi River or a designated representative. The COTP Lower 
Mississippi River may be contacted by telephone at (866) 777-2784. The 
COTP Lower Mississippi River or a designated representative will inform 
the public through BNM's of changes in the effective period and 
locations of the USACE vessels for the safety zone. This rule is 
effective from July 04, 2009, at 6 a.m. until 6 p.m. on November 01, 
2009, or until the USACE revetment work is complete.

Regulatory Evaluation

    We developed this 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. This rule will only be in effect for a 
short period of time and notifications to the marine community will be 
made through BNM. The impacts on routine navigation are expected to be 
minimal.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule 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.
    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 between mile marker 869.0 and mile marker 303.0 on the Lower 
Mississippi River from July 4, 2009, at 6 a.m. until 6 p.m. on November 
1, 2009, or until the USACE revetment work is complete.
    This safety zone will not have a significant economic impact on a 
substantial number of small entities because this rule allows for the 
USACE M/V to determine safe passage of one way traffic and night-time 
two way traffic during the time period. In addition, the COTP will 
provide updates to the mariners with BNM.

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 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

[[Page 45122]]

expenditure, we do discuss the effects of this rule elsewhere in this 
preamble.

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.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and does not create an 
environmental risk to health or risk to safety that may 
disproportionately affect children.

Indian Tribal Governments

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

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.
    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under 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 
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 is categorically excluded, under figure 2-1, paragraph 
(34)(g), of the Instruction.
    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.

0
2. Add new temporary Sec.  165.T08-0561 to read as follows:


Sec.  165.T08-0561  Safety Zone; Lower Mississippi River, USACE 
Revetment, Mile Marker 869 to 303.

    (a) Location. The following area is a safety zone: 0.5 mile 
downriver and 0.5 mile upriver from the 2009 U.S. Army Corps of 
Engineers (USACE) revetment work throughout the Lower Mississippi 
River, beginning at mile marker 869.0 and ending at mile marker 303.0, 
extending the entire width of the river during revetment operations. A 
mooring barge and spar barge will be perpendicular to the shore, and a 
work barge with a supply barge will be parallel to the shore and tied 
off to the mooring barge. The work barge utilizes large cranes in 
conjunction with bulldozers on the river bank to lay the mat. A 
Broadcast Notice to Mariners will be used by the Captain of the Port 
(COTP) Lower Mississippi River to identify specific locations of the 
USACE M/V and revetment locations.
    (b) Effective dates. This section is effective from 6 a.m. on July 
4, 2009, until 6 p.m. on November 1, 2009, or until the USACE revetment 
work is complete.
    (c) Regulations. (1) In accordance with the general regulations in 
Sec.  165.23 of this part, entry into this zone by vessels or mariners 
is prohibited unless authorized by the COTP Lower Mississippi River or 
a designated representative.
    (2) Persons or vessels requiring entry into or passage through must 
request permission from the COTP Lower Mississippi River or a 
designated representative. They may be contacted on VHF-FM Channel 16, 
or by telephone at (866) 777-2784.
    (3) All persons and vessels shall comply with the instructions of 
the COTP Lower Mississippi River and designated personnel. ``Designated 
personnel'' include commissioned, warrant, and petty officers of the 
U.S. Coast Guard.

    Dated: July 28, 2009.
M.S. Gardiner,
Captain, U.S. Coast Guard, Captain of the Port Lower Mississippi River.
[FR Doc. E9-21022 Filed 8-31-09; 8:45 am]

BILLING CODE 4910-15-P
